1. Information on Justice Thomas's nomination is voluminous. See, e.g., Marcia Coyle and Marianne Lavelle, "The 'Semi-Stealth' Choice: Clarence Thomas Isn't As Inscrutable As David H. Souter Was Last Year," National Law Journal, July 15, 1991, pp. 1, 28, 3; Sherry R. Sontag, "Classmates: 'Clarence Is Just Clarence,'" id., p. 29; "Special Report: Supreme Mystery," Newsweek, September 16, 1991, pp. 18-31; "Court Charade," id., pp. 18-20; "Cover Stories," Time, October 21, 1991, pp. 34-44; "The Thomas Affair," U.S. News and World Report, October 21, 1991, pp. 32-36; "The Swearing Never Stops," id., pp. 34-38; New York Times, October 13, 1991, p. 1; USA Today, October 14, 1991, p. 1; Ronald Dworkin, "Justice for Clarence Thomas," New York Review of Books 38 (November 7, 1991): 41.

2. Stephen Carter, Reflections of an Affirmative Action Baby (New York: Basic Books, 1991), p. 72.

3. Roy L. Brooks, "Shelby Steele and the Subtext of Developing Civil Rights Laws," Law and Inequality: A Journal of Theory and Practice 9 (1991): 359-381. break

1. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944; New York: Pantheon, 1964). For a recent attempt to update Myrdal's study, describing the progress of African Americans from 1939 to the present as a glass half empty, see Gerald D. Jaynes and Robin M. Williams, Jr., eds., A Common Destiny: Blacks and American Society (Washington, D.C.: National Academy Press, 1989).

2. Charles Murray, Losing Ground: American Social Policy, 1950-1980 (New York: Basic Books, 1984); Daniel P. Moynihan, Family and Nation (San Diego: Harcourt Brace Jovanovich, 1986); William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University of Chicago Press, 1987).

3. Thomas Sowell, The Economics and Politics of Race: An International Perspective (New York: William Morrow, 1983). Sowell intensified his attack on civil rights one year later in his book Civil Rights; Rhetoric or Reality? (New York: William Morrow, 1984).

4. Glenn Loury, "The Better Path to Black Progress: Beyond Civil Rights," New Republic, October 7, 1985, pp. 22-25.

5. Reynolds Farley and Walter R. Allen, The Color Line and the Quality of Life in America (New York: Russell Sage Foundation, 1987), p. 261.

6. Derrick A. Bell, Jr., And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987).

7. Jaynes and Williams, A Common Destiny ; Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore: Johns Hopkins University Press, 1988); Harold Crust, Plural But Equal : continue

Blacks and Minorities in America's Plural Society (New York: William Morrow, 1987).

1. See, respectively, City of Richmond v. J. A. Croson Co., 109 S. Ct. 706 (1989); Martin v. Wilks, 109 S. Ct. 2180 (1989); Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989); Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989).

2. Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 2136 (1989), Justice Blackmun dissenting with Justices Brennan and Marshall.

3. In analyzing what might come to be known as the Civil Rights Massacre of 1989, many have failed to notice that even the liberal justices on the Court (Brennan, Marshall, Blackmun, and Stevens) participated in some of the carnage. In a sex discrimination case that applies equally to race discrimination and is widely viewed as pro-plaintiff ( Price Waterhouse v. Hopkins, 109 S. Ct. 1775 [1989]), the Supreme Court expressly declined to follow the lead of District Court Judge Gerhard Gesell and others in rulings that would have increased the deterrent value of Title VII of the 1964 Civil Rights Act, the nation's principal employment discrimination law, by making it easier for Title VII plaintiffs to establish liability where evidence of discrimination exists. See discussion of this decision in Chapter 2.

4. White Americans had their civil rights protected for many years, at least vis-à-vis African Americans, by the institution of slavery and Jim Crow laws. And with the end of slavery and Jim Crow, whites have found less use than African Americans for the protection offered by civil rights laws and policies, given the socioeconomic advantages they were bequeathed from history and given that racial discrimination is not randomly distributed in this society even today. For a good discussion of the distribution of socioeconomic advantage during the decade after Jim Crow, see Lester Thurow, The Zero-Sum Society: Distribution and the Possibilities for Economic Change (New York: Basic Books, 1980), pp. 184-187. For an excellent discussion of the uneven distribution of racial discrimination in society after Jim Crow, see George Schatzki, "United Steelworkers of America v. Weber: An Exercise in Understandable Indecision," Washington Law Review 56 (1980): 56-57.

5. See, e.g., John Hope Franklin, From Slavery to Freedom: A History of Negro Americans, 3d ed. (New York: Vintage Books, 1969); A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process—The Colonial Period (New York: Oxford University Press, 1978); Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965 (New York: Viking, 1987). break

6. Pub. L. No. 89-110, 79 Stat. 445 (1965) (codified as amended at 42 U.S.C. § 1971 [1982]).

Before we can assess the remaining political inequality, African Americans will have to register and vote in greater numbers. African Americans do not register and vote as often as they can and should. No doubt, in some areas, they continue to face restrictive barriers such as at-large elections, gerrymandering, and annexation of voting districts, all covered in the Voting Rights Act. But, as some African American leaders expressed at a 1988 conference on policy issues convened by the Joint Center for Political Studies, voter registration and mobilization are the primary tools for increasing African American political power. See "Black Leaders Gather at the Fifth National Policy Institute to Discuss Critical Policy Issues," Conference Report, Focus, May 1988, pp. 7-8.

7. In 1964, for example, 49.6 percent of all African Americans lived in poverty, compared to 14.9 percent of all whites (William Kornblum and Joseph Julian, Social Problems, 6th ed. [Englewood Cliffs, N.J.: Prentice-Hall, 1989], p. 232). And in 1940, the first year a question concerning occupation was included in the census, 37 percent of African American males worked as domestic servants or laborers, compared to 9 percent of white males; and 6 percent of African American males held white-collar jobs, compared to 36 percent of white males (U.S. Bureau of the Census, Sixteenth Census of the United States: 1940, Population [Washington, D.C.: U.S. Government Printing Office, 1940], vol. 3, pt. 1, table 61). See also Parley and Allen, Color Line, pp. 256-270.

See Chapter 2 for a discussion of the recent growth of the African American middle class.

8. See, e.g., John J. Macionis, Sociology (Englewood Cliffs, N.J.: Prentice-Hall, 1987), pp. 218, 236-239.

9. See, e.g., Hazelwood School District v. United States, 433 U.S. 299, 308n. 14 (1977) (relying on statistical methods employing this theory); Melvin Humphrey, Black Experience Versus Black Expectations, Research Report no. 53 (Washington, D.C.: Equal Employment Opportunity Commission, 1977), p. 27.

10. Farley and Allen, Color Line, p. 6.

11. Wilson, The Truly Disadvantaged .

12. See, e.g., National Opinion Research Center, General Surveys (Chicago: National Opinion Research Center, 1983), p. 234.

13. See, e.g., Higginbotham, In the Matter of Color, p. 61 (quoting Lorenzo G. Green, The Negro in Colonial New England, 1620-1776 [New York: Columbia University Press, 1942], p. 17); Franklin, From Slavery to Freedom, pp. 101-102. break

14. Maybe the government has been leveling with us in a way. The Reagan administration and now the Supreme Court have been demonstrably opposed to civil rights, although neither would say so. Speaking for the Bush administration, Vice-President Dan Quayle announced at the NAACP's 1989 annual convention that "all Americans," including government, must help resolve the problems African Americans face ( San Diego Tribune, July 12, 1989), but such pronouncements are often made simply as a matter of politics.

15. See Chapter 4 for a discussion of the changing composition of the poverty class.

16. Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story, Perennial Library ed. (New York: Harper and Row, 1964), P. 199.

17. 42 U.S.C. §§ 2000e-2000e-17 (1982).

18. 42 U.S.C. §§ 3601-3617 (1982); 42 U.S.C. § 1982 (1982). The Fair Housing Act was recently amended (Fair Housing Amendments Act of 1988, P. L. 100-430, 102 Stat. 1619, September 13, 1988). Those amendments, which do not correct all the deficiencies in the act, are discussed in Chapter 6.

19. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

20. See Wilson, The Truly Disadvantaged .

21. Wilson cites the exodus of middle-class and working-class African Americans from previously segregated communities as a possible explanation for the rise of the underclass. He does not, however, link this racial dynamic to civil rights policy (id., pp. 7, 30-62, 143-144, 160-161).

22. See, e.g., Samuel Spencer, Jr., Booker T. Washington and the Negro's Place in American Life (Boston: Little, Brown, 1955); W. E. B. DuBois, The Autobiography of W. E. B. DuBois (New York: International Publishers, New World Paperbacks, 1970). Washington believed that African Americans should try to win the respect of whites "by proving their usefulness to society through the acquisition of wealth and morality" (August Meier, Elliott Rudwick, and Francis Broderick, eds., Black Protest Thought in the Twentieth Century, 2d ed. [Indianapolis: Bobbs-Merrill, 1971], p. xxv), which essentially meant that they should not focus on social or political protest against racism and discrimination, should accept segregation and Jim Crow's separate-but-equal policy, and should favor vocational training and manual labor at the expense of higher education. DuBois and other African American intellectuals of his day (such as Monroe Trotter, publisher of the Guardian, the first African American paper to openly attack Washington) disagreed with this philosophy of accommodation. But there was substantial agreement among Washington, DuBois, and other African American leaders concerning the necessity for self-help, which for them entailed an emphasis on racial pride and solidarity and support for African American businesses. Spencer, Booker T. Washington, pp. 148–158, 160; DuBois, Autobiography, pp. 138, 209; Meier, Rudwick, and Broderick, Black Protest Thought, pp. xxii-xxix, 3–74; Elliott Rudwick, W. E. B. DuBois: Propagandist of the Negro Protest (New York: Atheneum, 1969). Washington and his philosophy of accommodation came to prominence in September 1895 in a speech he gave, as head of Tuskegee Institute, at the Atlanta Cotton Exposition (DuBois, Autobiography, p. 428). But Washington achieved greater notoriety with the publication of his autobiography, Up from Slavery, first published in 1901. For further discussion of various schools of African American thought, see, e.g., Roy L. Brooks, "Twentieth Century Black Thought: Ideology and Methodology," Phi Kappa Phi Journal 53 (1973): 46–57.

23. King, Stride Toward Freedom, pp. 21–22.

24. The idea that middle-class African Americans have unique skills and knowledge may raise the issue of whether I am claiming that African Americans possess, either innately or through experience, an Afrocentric vision—;a racially distinct voice, in contrast to a Eurocentric or a feminist voice, for example—;and, if so, whether I am also asserting that such a worldview is intellectually or emotionally inaccessible to whites. I explore this issue further in Chapter 5. For now, I simply assert that people learn from their experiences and that middle-class African Americans, having already experienced what other African Americans will encounter as they move up the socioeconomic ladder (racism, discrimination, the weight of slavery and Jim Crow, and so on), are in a better position to give guidance than are middle-class whites, whose life experiences are different in significant respects from African Americans of any class. Middle-class African Americans, in short, know the terrain well, whether or not they are able to articulate a racially distinct metaphysics or worldview based on their experiences.

Perhaps I should also note here that many African American scholars argue for the existence of a distinct black perspective (or "blackness") consisting of African and American (Western) elements; see, e.g., Henry Gates, Jr., The Signifying Monkey: A Theory of Afro-American Literary Criticism (New York: Oxford University Press, 1988); Molefi Kete Asante, The Afrocentric Idea (Philadelphia: Temple University Press, 1987). One controversial element of the argument—that whites cannot access this frame of mind—goes back a long way. For example, in a 1927 correspondence between the African American historians Carter G. Woodson and Charles Wesley, Wesley argued that white historians could not report the history of African Americans as "successfully" as African American historians, because "the one who feels the pinch can tell the story of the joy or pain more convincingly and truthfully than another" (August Meier and Elliott Rudwick, Black History and the Historical Profession, 1915–1980 [Urbana: University of Illinois Press, 1986], p. 289). Woodson himself agreed with this view, believing that "men of other races cannot function efficiently because they do not think black" (id.). African American literary figure William Pickens wrote in 1922 that "it is not simply that the white story teller will not do full justice to the humanity of the black race; he cannot " (Addison Gayle, Jr., ed., The Black Aesthetic [Garden City. N.Y.: Doubleday, 1972], p. xvii; emphasis in original).

If a residual racial perspective that cuts across class lines and other intra-racial differences does inhere in African Americans, surely it consists of at least two ingredients. One is the expectation of struggle, that is, the belief that whether an African American wants to simply get through the day or to tackle more complex endeavors (obtaining a quality education, finding and holding a good job, successfully raising a family), he or she should expect to encounter no dearth of artificial, racial barriers and must be prepared to recognize and then deal with them effectively. I doubt that this vision of existence is fundamental to the way white Americans approach their lives or, if it is, that it is as pervasive among whites as it is among African Americans. This tendency to be in a constant state of "overcoming" may be related to the high incidence of hypertension among African Americans. The second ingredient is the belief that society ("the system" or "the Man") is more foe than friend, a theme echoed by African American writers and social activists from the days of slavery to recent times. See Chapter 5 for further discussion of a racial perspective.

Perhaps the danger of acknowledging a distinct racial perspective is that it may stereotype African Americans. See, e.g., Randall Kennedy, "Racial Critiques of Legal Academia," Harvard Law Review 101 (1989): 1786–1787 (sources cited therein). Even a positive stereotype may be negative in that it prevents one from thinking beyond pre-set racial categories and, as a result, denies an individual the opportunity to be judged on his or her own merits.

25. Sheila Kamerman and Alfred Kahn, "Europe's Innovative Family Policies," Transatlantic Perspectives, March 1980, p. 12; Wilson, The Truly Disadvantaged, pp. 140–164.

1. The origin of the term Jim Crow is lost in obscurity, as C. Vann Woodward points out in his book The Strange Career of Jim Crow (2d rev. ed. [New York: Oxford University Press, 1966], p. 7n). The words were first used in a song-and-dance score written in 1832. The term, however, is most often used to refer to the segregation statutes that began to appear in the South before the turn of the twentieth century. The large number, great detail, and effective enforcement of these statutes distinguish them from the black codes that followed the withdrawal of federal troops from the South in 1877, ending the Reconstruction era, and from the ubiquitous slave codes that regulated not only race relations inside the peculiar institution but also relations between whites and free or quasi-free African Americans in the North and South from the inception of American slavery. In the generic sense, Jim Crow refers to the system of discrimination and segregation laws born in the North, developed contemporaneously with slavery, and passed down in a variety of forms intergenerationally through the 1960s.

In this book, the term Jim Crow is used in a somewhat more specific sense. Most important, it does not encompass the separate-and-unequal policy that governed interracial relations prior to the "equality" amendments to the Constitution (the Thirteenth, Fourteenth, and Fifteenth amendments) and the "equality" laws enacted by Congress during Reconstruction. Rather, I use the term as coextensive with the separate-but-equal policy brought alive by the Supreme Court's interpretation of the Reconstruction amendments and statutes in the final decades of the nineteenth century. For this reason, Plessy v. Ferguson (163 U.S. 537 [1896]), which, more than any other Supreme Court case, institutionalized the separate-but-equal policy, is an appropriate historical "starting date" for Jim Crow.

See Woodward, Strange Career of Jim Crow, chaps. 1-3; Franklin, From Slavery to Freedom, chaps. 6-19; Derrick A. Bell, Jr., Race, Racism, and American Law, 2d ed. (Boston: Little, Brown, 1980), pp. 364-379; Roy L. Brooks, "Use of the Civil Rights Acts of 1866 and 1871 to Redress Employment Discrimination," Cornell Law Review 62 (1977): 258, 261-266. On the subject of Reconstruction, see, e.g., Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988).

2. For extensive discussions of the transition from a separate-but-equal public policy to one of formal equal opportunity, see Williams, Eyes on the Prize ; Richard Kluger, Simple Justice (New York: Alfred A. Knopf, 1976); Woodward, Strange Career of Jim Crow . break

As used in this chapter, the term community means more than just a neighborhood or a physical locality; it refers to a society or body of people. For further discussion of this concept, see, e.g., In re Huss, 126 N.Y. 537, 27 N.E. 784 (1891).

3. Plessy v. Ferguson, 163 U.S. 537 (1896).

4. For further discussion of Washington's philosophy, see the Introduction, above, note 22.

5. See, e.g., Williams. Eyes on the Prize, pp. 237-257; Kluger, Simple Justice, pp. 1-256; Woodward, Strange Career of Jim Crow, pp. 67-110.

6. See Brown v. Board of Education, 347 U.S. 483 (1954).

7. Thomas S. Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970).

8. Exec. Order No. 8802, 3 C.F.R. 957 (1941).

9. See, e.g., Charles C. Moskos, "Blacks in the Army: Success Story," Current, September 1986, pp. 10-17; Philip McGuire, "Desegregation of the Armed Forces: Black Leadership, Protest, and World War II," Journal of Negro History 63 (Spring 1983): 147-158; Daniel L. Schaefer, "Freedom Was as Close as the River: The Blacks of Northeast Florida and the Civil War," Escribano 23 (1986): 91-116; Saralee R. Howard-Filler, "Two Different Battles," Michigan History 71 (January/ February 1987): 30-33; Gregory Evans Dowd, "Declarations of Dependence: War and Inequality in Revolutionary New Jersey, 1776-1815," New Jersey History 103 (1985): 47-67. One of the best books on African Americans in the military is Richard 0. Hope, Racial Strife in the U.S. Military: Toward the Elimination of Discrimination (New York: Praeger, 1979).

10. Exec. Order No. 9981, 3 C.F.R. 722 (1948); Exec. Order No. 9980, 3 C.F.R. 720 (1948).

11. See Franklin, From Slavery to Freedom, pp. 523-545.

12. See, e.g., Edwin Dorn, "Truman and the Desegregation of the Military," Focus, May 1988, pp. 3-4, 12.

13. See, e.g., Franklin, From Slavery to Freedom, pp. 546-611.

14. Brown v. Board of Education [Brown I ], 347 U.S. 483 (1954). Lawyers often refer to this decision as Brown I to distinguish it from the second Supreme Court decision in the case, rendered in 1955. The second decision, called Brown II (cited as 349 U.S. 294 [1955]), deferred implementation of constitutional rights granted in Brown I by allowing school desegregation to proceed with "all deliberate speed" rather than immediately.

15. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (Fourteenth Amendment's equal protection clause prohibits state enforcement of ra- soft

cially restrictive covenants in housing); Sweatt v. Painter, 339 U.S. 629 (1950) (African American law students ordered admitted to the all-white University of Texas Law School on the ground that the state law school established for African Americans failed to offer equal educational opportunity); McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950) (state-imposed restrictions placed on African American graduate students attending an otherwise all-white university produced such inequalities as to offend the equal protection clause); Henderson v. United States, 339 U.S. 816 (1950) (Southern Railway's discriminatory dining-car regulations violated the equal protection clause). For the best account of the legal history leading up to Brown I, see Kluger, Simple Justice .

16. Brown v. Board of Education [Brown II ], 349 U.S. 294, 297 (1955).

17. Robert Carter, "The Warren Court and Desegregation," Michigan Law Review 67 (1968): 247.

18. See, e.g., Thomas R. Frazier, ed., Afro-American History: Primary Sources (New York: Harcourt Brace and World, 1970), p. 368 (quoting from the NAACP Legal Defense and Education Fund's summary argument in Brown I ).

19. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §§ 1971-2000h-6 [1982]); Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (1965) (codified as amended at 42 U.S.C. § 1971 [1982]); Fair Housing Act of 1968 (Title VIII), Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as amended at 42 U.S.C. §§ 3601-3619 [1982 and Supp. 1987]).

20. Skelly Wright, "Professor Bickel, the Scholarly Tradition, and the Supreme Court," Harvard Law Review 84 (1971): 769-805.

21. Holmes's maxim is quoted from Oliver Wendell Holmes, Jr., The Common Law, ed. Mark Howe (Cambridge, Mass.: Harvard University Press, Belknap Press, 1963), p. 5. This expression appears in a somewhat different form in an unsigned review of Langdell's Contracts book; see Book Note, American Law Review 14 (1880): 233-236.

The Langdellian syllogism refers to the legal formalism promoted by the famous Harvard Law School dean, Christopher C. Langdell; see Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871). Not surprisingly, this book received a negative review from Holmes, who was an instrumentalist.

Legal realism, a form of instrumentalism, purports to be a realistic and scientific view of the law, meaning that it: (a) focuses on what judges do rather than on what judges say; (b) is cognizant of the consequences judicial decisions have on the community; and (c) believes all continue

legal institutions operate pursuant to a pleasure-pain calculus in which they attempt to maximize the welfare of the greatest number of individuals within the community. See, e.g., Jerome Frank, Law and the Modern Mind (New York: Tudor, 1930); Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice (Chicago: University of Chicago Press, 1962). In contrast, legal formalism is primarily concerned with the internal order of law, deductive logic, or what Roberto Unger has called "a restrained, relatively apolitical method of analysis" ("The Critical Legal Studies Movement," Harvard Law Review 96 [1983]: 565).

Various scholars have provided a detailed analysis of legal realism and legal formalism. See Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10 (1897): 457-478; this is a restatement and refinement of conclusions worked out by Holmes in The Common Law (originally published in 1881). See also Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale University Press, 1921). Two other books by Cardozo may provide a more definitive statement of his views on legal process and the social end of law: The Growth of the Law (New Haven, Conn.: Yale University Press, 1924); and The Paradoxes of Legal Science (New York: Columbia University Press, 1928). Holmes was a utilitarian; see H. L. Pholman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge, Mass.: Harvard University Press, 1984). To the extent that Cardozo appeals to considerations of what he calls "social welfare" for guidance in deciding cases, he too can be classified as a utilitarian. In his later books, however, Cardozo seems more metaphysical, perhaps a neonatural law jurisprudent, undertaking a search for generalized principles of law. On utilitarianism, see, e.g., Jeremy Bentham. An Introduction to the Principles of Morals and Legislation (New York: Hafner, 1948); Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). For a recent defense of legal formalism, see Ernest J. Weinrib, "Legal Formalism: On the Immanent Rationality of Law," Yale Law Journal 97 (1988): 949-1016.

22. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

23. For further discussion of this argument, see, e.g., Owen Fiss, "A Theory of Fair Employment Laws," University of Chicago Law Review 38 (1971): 235-341.

24. See, e.g., Joel J. Kupperman, "Relations Between the Sexes: Timely vs. Timeliness Principles," University of San Diego Law Review 25 (1988): 1027-1041; Roy L. Brooks, "The Affirmative Action Issue: Law, Policy, and Morality," University of Connecticut Law Review 22 1990): 323-372. break

1. Stephen Rose, The American Profile Poster (New York: Pantheon, 1986), p. 9. For a general discussion of class stratification in American society, see, e.g., Richard T. Schaefer, Sociology, 3d ed. (New York: McGraw-Hill, 1989), pp. 204-243; Macionis, Sociology, pp. 217-260.

2. Bart Landry, The New Black Middle Class (Berkeley and Los Angeles: University of California Press, 1987), pp. 5-11.

3. See Rose, American Profile, p. 8.

4. See Robert B. Hill, "The Black Middle Class Defined," Ebony (special issue), August 1987, pp. 30-32; Andrew F. Brimmer, "Income and Wealth," Ebony (special issue), August 1987, pp. 42-48; Andrew Hacker, "American Apartheid," New York Review of Books, December 3, 1987, pp. 26-33.

5. For a more detailed discussion, see U.S. Bureau of the Census, Current Population Reports: Money Income and Poverty Status in the United States: 1988, Series P-6o, no. 166, advance data from the March 1989 Current Population Survey (Washington, D.C.: U.S. Government Printing Office, 1989). Compare that document with U.S. Bureau of the Census, Current Population Reports: Money Income of Households, Families, and Persons in the United States: 1987, Series P-6o, no. 162 (Washington, D.C.: U.S. Government Printing Office, 1989).

6. The statistics presented here are drawn from data originally assembled by the Bureau of Labor Statistics and compiled and refined in Rose, American Profile, pp. 12-13, 21-22. For more detailed discussion of the African American middle class, see Bart Landry's The New Black Middle Class, as well as a two-part article by Landry: "The New Black Middle Class," pts. 1 and 2, Focus , September 1987, pp. 5-7; October 1987, PP. 6-7.

7. On housing segregation, see Farley and Allen, Color Line, p. 150; Sean-Shong Hwang et al., "The Effects of Race and Socioeconomic Status on Residential Segregation in Texas, 1970-1980," Social Forces 63 (March 1985): 732-747. On geographic separation, see Wilson, The Truly Disadvantaged, pp. 7, 30, 49, 56, 143-144.

8. Farley and Allen, Color Line, p. 205.

9. For further discussion, see Regina Austin, "Resistance Tactics for Tokens," Harvard Blackletter Journal 3 (1986): 52-53.

10. In a fairly recent national survey, only 6 percent of African Americans questioned said they trusted "most white people" (National Opinion Research Center, General Social Surveys, 1972-1983: Cumulative Codebook [Chicago: National Opinion Research Center, 1983], p. 118). break

11. Leon Lewis, "About Men: In On the Game." New York Times Magazine, February 3, 1985, p. 70.

12. Vidiadhar S. Naipaul. The Enigma of Arrival (New York: Alfred A. Knopf, 1987).

13. See Roy L. Brooks, "Anti-Minority Mindset in the Law School Personnel Process: Toward an Understanding of Racial Mindsets," Law and Inequality: A Journal of Theory and Practice 5 (1987): 6; Roy L. Brooks, "Life After Tenure: Can Minority Law Professors Avoid the Clyde Ferguson Syndrome?" University of San Francisco Law Review 20 (1986): 421.

14. Linda Williams. "Stress of Adapting to White Society Cited as Major Cause of Hypertension in Blacks," Wall Street Journal, May 28, 1986. Williams's article describes several recent studies. For more information on health problems among African Americans, see, e.g., U.S. Bureau of the Census, Statistical Abstract of the United States, 1985, 106th ed. (Washington, D.C.: U.S. Government Printing Office, 1986), p. 72, table 112.

15. Williams, "Stress of Adapting."

16. Roger Wilkins, A Man's Life: An Autobiography (New York: Simon and Schuster, 1982), pp. 54-55.

17. Williams, "Stress of Adapting."

18. See John P. Fernandez, Racism and Sexism in Corporate Life: Changing Values in American Business (Lexington, Mass.: Lexington Books, 1981); Larry Reibstein, "Many Hurdles, Old and New, Keep Black Managers Out of Top Jobs," Wall Street Journal, July 10, 1986; Carol Hymowitz, "Many Blacks Jump Off the Corporate Ladder to Be Entrepreneurs," Wall Street Journal, August 2, 1984; Gary Rivlin, "Climbing the Legal Ladder: Some Kinds of Discrimination Die Hard," American Bar Association Update, Fall 1981, pp. 28-49. See also Floyd Dickens and Jacqueline Dickens, The Black Manager: Making It in the Corporate World (Saranac Lake, N.Y: American Management Association, 1987).

19. Establishing the existence of disproportionate employment discrimination can be a bit tricky for two reasons. First, the term discrimination is a term of art, that is, it has special legal definitions: "disparate treatment" (unfavorable treatment because of one's race or color) and "disparate impact" (racially neutral employment policies, practices, or procedures that have a disproportionately negative effect on a racial group). (These terms are discussed in more detail later in Chapter 2.) Unless otherwise specified, both meanings are incorporated in my use of the term discrimination throughout this book. break

Second, discrimination does not exist, at least not in a legal sense, until a court (and, really, the Supreme Court) says so. A judicial finding of discrimination, however, has an uncertain quality about it. The finding is empirical (a question of fact), analytical (a question of law applied to the facts), and policy-driven (a question of who bears the burden of proof). In addition, a lower court's finding of discrimination is subject to reversal either on direct appeal or years later when and if the issue comes before the court again in another case. Thus a careful review of judicial determinations (the "best" evidence available) is inconclusive evidence of the existence of even a legally controlled concept of discrimination.

Given the uncertainty inherent in judicial determinations, I rely on claims of discrimination as well as proofs (judicial determinations) of discrimination to establish intra-class racial disparity. Claims include personal perceptions of discrimination, government agency fillings of discrimination cases in federal courts, and private cases of discrimination filed and reported in the federal case reporters at all three federal levels—trial level (district courts), intermediate appellate level (circuit courts of appeal), and highest appellate level (Supreme Court).

Personal perceptions of discrimination cannot be ignored. Even if they are "wrong" or exaggerated, they are real to the perceiver. More important, these perceptions affect an African American individual's behavior and chances for success and personal happiness. There is also good sociopsychological evidence that these perceptions are mostly accurate; see, e.g., Charles Lawrence, "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism," Stanford Law Review 39 (1987): 317-388.

20. My research assistant, Lincoln B. Smith, and I conducted what might be called "juri-statistical" research of employment discrimination cases brought before the federal courts in 1987. We used Westlaw, a standard research device in law, accessing its database of primary and secondary legal authorities through the "allfed" library (see Westlaw 1989 version [St. Paul, Minn.: West Publishing]). For a more detailed description and analysis of this research, see Lincoln B. Smith, "Juri-Statistical Methods in Legal Research" (typescript, December 1989). See generally Westlaw: Introductory Guide to Legal Research (St. Paul, Minn.: West Publishing, 1988).

21. Annual Report of the Director of the United States Courts, 1987 (Washington. D.C.: U.S. Government Printing Office, 1987), p. 208, table C4.

22. The United States Courts Administrator does not keep statistics on the percentage of plaintiff victories in civil actions in general. break

23. See West's Federal Practice Digest Edition, 1975 to Date (St. Paul, Minn.: West Publishing, 1984), Civil Rights Sec. 9. 10. This case digest, consisting of several volumes, is updated weekly with advance sheets published by West.

24. For example, in Michael J. Zimmer, Charles A. Sullivan, and Richard Richards, Cases and Materials on Employment Discrimination, 2d ed. (Boston: Little, Brown, 1988), the chapters dealing with the concept of discrimination (chaps. 1-4) report only a few major federal cases involving a white plaintiff. Casebooks, of course, provide very limited and purposeful case collections.

25. See, e.g., Equal Employment Opportunity Commission, Twenty-Third Annual Report—1988 (Washington, D.C.: EEOC, 1989); Equal Employment Opportunity Commission, Eighteenth Annual Report—1983 (Washington. D.C.: EEOC, 1984).

26. On corporations, see "Special Issues—Progress Report on the Black Executive: The Top Spots Are Still Elusive," Business Week, February 20, 1984, pp. 104-105; Derek Dingle, "Will Black Managers Survive Corporate Downsizing?" Black Enterprise, March 1987, pp. 49-55. On law firms, see Edward Burke, "3,700 Partners, 12 Are Black," National Law Journal, July 2, 1979, p. 1; Ralph Smith, "The Invisible Lawyer," Barrister, Fall 1981, pp. 42-49. On law faculties, see Brooks, "Anti-Minority Mindset," pp. 101, 105-106; Derrick A. Bell, Jr., "The Price and Pain of Racial Perspective," Stanford Law School Journal, April 1986, p. 5.

On the news media, see David Hatchett, "Blacks and the Mass Media," Crisis, June/July 1989, pp. 18-26, 68; Noah Griffin, "Broadcasting," Crisis, June/July 1989, pp. 28-32, 66; "Double Jeopardy in the Newsroom," Time, November 29, 1982, p. 90; Richard L. Levine, "The Plight of Black Reporters: Why 'Unconscious Racism' Persists," TV Guide, July 25, 1981, pp. 22-28. On the motion picture and television industries, see Erwin Washington, "Racism and the Movie Industry," Crisis, June/July 1989, pp. 34-40, 66; Joy Horowitz, "Hollywood's Dirty Little Secret," American Visions, August 1989, pp. 16-21; Scott Hays, "Capturing the Black Experience," TV Guide, November 29, 1986, pp. 10-14.

27. See, e.g., James P. Smith and Finis R. Welch, Closing the Cap: Forty Years of Economic Progress for Blacks (Santa Monica, Calif.: Rand, 1986), pp. xx-xxi, 85-91; Barbara Bergmann, "An Affirmative Look at Hiring Quotas," New York Times, January 10, 1982, sec. 3 (Business). See also "Affirmative Word from Washington," New York Times, December 13, 1981, sec. 4 (Week in Review). An unpublished study by the U.S. Labor Department clearly documents the effective- soft

ness of affirmative action; for discussion of the study, see Robert Pear, "Study Says Affirmative Rule Expands Hiring of Minorities," New York Times, June 19, 1983, sec. 1 (main); Mary Thorton, "Affirmative Action Found to Diversify Work Force," Washington Post, June 20, 1983, sec. 1.

28. Farley and Allen, Color Line, p. 317, chap. 11.

29. Smith and Welch, Closing the Gap, p. 23; emphasis added. See id. for figures taken from the Rand Corporation study; and see Walter L. Updegrave, "Personal Finance: Race and Money," Money, December 1989, p. 152.

30. As one African American lawyer stated in reference to the low percentage of African American partners in large law firms: "We have long felt that the large, established firms discriminate against minority attorneys, but we haven't had the statistics until now" (Burke, "3,700 Partners," p. 1).

31. Glegg Watson and George Davis, Black Life in Corporate America: Swimming in the Mainstream (Garden City, N.Y: Anchor/Doubleday, 1982). Both were quoted in "Special Issues-Progress Report on the Black Executive," p. 105.

32. The views quoted here were taken from "Special Issues—Progress Report on the Black Executive," p. 105.

33. Id.

34. Levine, "Plight of Black Reporters," p. 22.

35. Id. See also Hatchett, "Blacks and the Mass Media"; Griffin, "Broadcasting."

36. "Double Jeopardy in the Newsroom," p. 90. In EEOC v. New York News, Inc . (81 Civ. 337 [S.D.N.Y. 1987]), a jury in the Southern District of New York returned a verdict in favor of the plaintiffs, who charged that between 1979 and 1982 the New York Daily News denied promotion and desirable assignments to four African American journalists. Testimony described a newsroom where editors tossed around such epithets as "nigger" and "spic." Despite such specific acts of racism, the jury found discrimination in only twelve of the twenty-three incidents on which testimony was taken, again demonstrating how difficult it is to prove intentional discrimination today. See "Jury Finds Bias by Daily News," New York Times, April 19, 1987, sec. 4 (Week in Review).

37. Hays, "Capturing the Black Experience," p. 11.

38. Id. See also Horowitz, "Hollywood's Dirty Little Secret"; Washington, "Racism and the Movie Industry."

39. Barbara Becnel, "Minority Lawyers: Some Firms Fear Client Objections," Los Angeles Daily Journal, May 11, 1987. Although four hundred questionnaires were mailed out by the Minority Employment Committee, there were only thirty-five responses. One committee continue

member said there was no way to determine whether the small number of responses accurately reflected the prevailing attitudes of law partners in Los Angeles, because, as far as he knew, this was the first survey of its kind undertaken by the bar. For an excellent discussion of racism in the legal profession, see Mark Diamond, "A Trace Element in the Law," American Bar Association Journal, May 15, 1987, pp. 46-49. See also Doreen Weisenhaus, "White Males Dominate Firms: Still a Long Way to Go for Women and Minorities," National Law Journal, February 8, 1988, P. 1

40. See Schaefer, Sociology, p. 246. Prejudice refers to a state of mind, and discrimination refers to behavior. Prejudiced and unprejudiced discrimination by individuals should be contrasted with institutional discrimination, which refers to the denial of opportunities or rights to individuals or groups as a result of the normal operations of an institution or a society.

41. See Brooks, "Anti-Minority Mindset," pp. 107-108; "The 1985 Minority Law Teachers' Conference," Symposium Report, University of San Francisco Law Review 20 (1986): 576.

42. Richard Chused, "The Hiring and Retention of Minorities and Women on American Law School Faculties," University of Pennsylvania Law Review 137 (1988): 556, table 1

43. Excluding those who retired or died, 16. 7 percent of African American tenured professors left law teaching between the 1980-1981 and 1986-1987 academic years, compared to 7.5 percent of white tenured professors (id., p. 544).

44. Sally Goldfarb, "Education Without Representation," Student Lawyer, May 1981, pp. 11-13; Rivlin, "Climbing the Legal Ladder," P. 49.

45. See Bell, "Price and Pain of Racial Perspective," p. 5.

46. The psychological effects of segregative occurrences on African Americans are well documented and have played an essential role in the development of race law. See, e.g., Brown v. Board, of Education, 347 U.S. 483, 493n. 11 (1954). See also Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 450 (1986) ("Affirmative action 'promptly operates to change the outward and visible signs of yesterday's racial distinctions and, thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices'" [quoting NAACP v. Allen, 493 F.2d 614, 621 (5th Cir. 1974)]).

47. Lance Morrow, "The Powers of Racial Examples," Time, April 16, 1984, p. 84.

48. EEOC statistics are quoted in Dingle, "Will Black Managers Survive Corporate Downsizing?" p. 51. break

49. On law partnerships, see Weisenhaus, "White Males Dominate Firms," p. 1. See also Diamond, "Trace Element," p. 46. According to Roderick McLeod, head of the American Bar Association's Committee on Minorities in the Profession, "By and large, minorities are very underrepresented in all segments of the [legal] profession-in all size firms, corporate legal departments and government" (id., p. 47). See also Paul Marcotte. "The Changing of the Guard," American Bar Association Journal, May 15, 1987, pp. 56-62. The information cited on teaching positions in law schools was taken from a 1986 memorandum: Executive Director, Association of American Law Schools, to Deans of Member Schools, Memorandum no. 86-57, September 5, 1986.

On investment banking jobs, see "Blacks and the Wall Street Purge," Newsweek, February 1, 1988, p. 38. Although investment banking firms refuse to comment on how many African American employees lost their jobs after the October 1987 stock market crash, it is estimated that as many as one-third to one-half of these employees were laid off. One insider at Solomon Brothers reported that roughly two-thirds of the firm's African American bankers were fired after the crash.

On newspaper editorial positions, see "Double Jeopardy in the Newsroom," p. 90. This source reports that 5.5 percent of newspaper editors are minorities. African Americans, therefore, as only one of several minorities, hold an even smaller percentage of these posts.

50. Farley and Allen, Color Line, p. 280; also pp. 256-282.

51. On the equal protection clause of the Fourteenth Amendment, see, e.g., United States v. Paradise, 480 U.S. 149, 166 (1987) (cases cited therein); see also Brown v. Board of Education, 347 U.S. 483 (1954); City of Richmond v. J. A. Croson Co ., 109 S. Ct. 706 (1989). On the equal protection component of the Fifth Amendment's due process clause, see, e.g., Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 479-480 (1986) (cases cited therein); see also Bolling v. Sharpe, 347 U.S. 497 (1954).

52. On suspect classifications, see e.g., McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 807 (1969). Also Polyvios G. Polyviou, The Equal Protection of the Laws (London: Duckworth, 1980); "Developments in the Law—Equal Protection," Note, Harvard Law Review 82 (1969): 1065-1192. On violations of fundamental personal interests, see, e.g., Reynolds v. Sims, 377 U.S. 533, 561-562 (1964). Fundamental personal interests include the right to procreate ( Skinner v. Oklahoma, 316 U.S. 535 [1942]), the right to vote ( Reynolds v. Sims, 377 U.S. 533 [1964]), and the right to engage in interstate travel ( Shapiro v. Thompson, 394 U.S. 618 [1969]). break

53. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 273-274 (1986) (Powell, J., concurring); Palmore v. Sidoti, 466 U.S. 429, 432 (1984); Loving v. Virginia, 388 U.S. 1, 11 (1967). See also McLaughlin v. Florida, 397 U.S. 184 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948). Some Supreme Court justices have proposed alternative levels of judicial scrutiny; see Chapter 2, note 57, below, and accompanying text.

54. On protecting national security as a compelling governmental interest, see Korematsu v. United States, 323 U.S. 214 (1944). On remedying past discrimination, see United States v. Paradise, 480 U.S. 149, 166 (1987) (cases cited therein).

55. See, e.g., McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 809 (1969), which reads in part: "Legislatures are presumed to have acted constitutionally." In this case, the Supreme Court held that a classification based on handicapped status is not suspect and hence is subject to the rational basis test. On the basis of that test, the Court upheld the constitutionality of the classification under the equal protection clause.

56. Explicit gender-based classifications are not suspect classifications and hence are not subject to strict scrutiny. Neither are they reviewed under the rational basis test. Rather, the Supreme Court employs a "middle tier," or an "intermediate level," of scrutiny. Under this standard, the classification in question must serve important governmental objectives and must be substantially related to the achievement of those objectives. See Craig v. Boren, 429 U.S. 191 (1976). See also Gerald Gunther, Constitutional Law, 11th ed. (Mineola, N.Y: Foundation Press, 1985), pp. 642-664; Craig C. Ducat and Harold W. Chase, Constitutional Interpretation, 3d ed. (St. Paul, Minn.: West Publishing, 1983), PP. 692, 861-871.

57. United States v. Paradise, 480 U.S. 149, 166 (1987). See also City of Richmond v. J. A. Croson Co ., 109 S. Ct. 706 (1989). While agreeing that "some elevated level of [judicial] scrutiny is required when a racial or ethnic distinction is made for remedial purposes" ( United States v. Paradise, 480 U.S. 149, 166 [1987]), some members of the Court have proposed alternative levels of judicial scrutiny. Justices Marshall, Brennan, and Blackmun, for example, would allow racial classifications that serve "important governmental objectives" and are "substantially related to the achievement of those objectives" ( Wygant v. Jackson Board of Education, 476 U.S. 267, 301 [1986] [quoting Regents of the University of California v. Bakke, 438 U.S. 265, 359 (1978)]). Justice Stevens would permit the use of race if the public interest vindicated by such use and the means employed to implement that interest justify the resulting adverse effects on the disadvantaged group ( Wygant v. Jackson continue

Board of Education, 476 U.S. 267, 313-314 [1986]). None of these alternative levels of judicial scrutiny have replaced the strict scrutiny test as the dominant mode of constitutional analysis for racial classification. The use of a racial classification to remedy a defendant's prior discrimination is permissible under any of the alternative modes of constitutional analysis. See generally United States v. Paradise, 480 U.S. 149, 166n. 17 (1987).

58. When an employer voluntarily sets up race-conscious employment practices or policies, it is usually willing to admit to conspicuous racial or sexual imbalance in its work force but quite unwilling to admit to its own discrimination, because that in effect would be admitting to a violation of the law. See, e.g., Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 619-626 (1987); United Steel-workers of America v. Weber, 443 U.S. 193, 209 (1979).

59. Local 28. Sheet Metal Workers v. EEOC, 478 U.S. 421, 450 (1986) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 [1973]). See also Thompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 1982); Chisholm v. U.S. Postal Service, 665 F.2d 482, 499 (4th Cir. 1981); United States v. Lee Way Motor Freight, Inc ., 625 F.2d 918, 943-945 (10th Cir. 1979); Rios v. Enterprise Association Steamfitters Local 938, 501 F.2d 622, 631-632 (2d Cir. 1974); Harry T. Edwards and Barry L. Zaretsky, "Preferential Remedies for Employment Discrimination," Michigan Law Review 74 (1976): 9.

60. The unpublished Labor Department report is described in two sources: Pear, "Study Says Affirmative Rule Expands Hiring of Minorities"; and Thornton, "Affirmative Action Found to Diversify Work Force." Reports from the U.S. Commission on Civil Rights are described in "Affirmative Word from Washington"; see also Farley and Allen, Color Line, p. 261. The Rand Corporation's findings are reported in Smith and Welch, Closing the Gap, pp. 85-91. See also Bergmann, "Affirmative Look at Hiring Quotas."

61. 42 U.S.C. § 2000e-2000e-17 (1982).

62. Section 703(a), 42 U.S.C. § 2000e-2(a) (1982).

63. On employment discrimination on the basis of race, see, e.g., Slack v. Havens, 7 Fair Empl. Prac. Cas. (BNA) 885 (S.D. Cal. 1973), aff'd as modified, 522 F.2d 1091 (9th Cir. 1975). Although it is an impermissible basis listed in Section 703(a), color is generally treated as indistinguishable from race; see EEOC Decision no. 72-0454 (September 15, 1971) (unpublished EEOC finding of reasonable cause in a case in which a light-skinned, "white-looking" African American was selected over a dark-skinned African American with Negroid features). break

On employment discrimination on the basis of sex, see, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); Rosenfeld v. Southern Pacific Co ., 444 F.2d 1219 (9th Cir. 1971); Weeks v. Southern Bell Telephone and Telegraph Co ., 408 F.2d 228 (5th Cir. 1969).

In addition to prohibiting discrimination on the basis of religious observances, practices, and beliefs, Title VII requires employers to accommodate work requirements to religious practices; see, e.g., Trans World Airlines. Inc. v. Hardison, 432 U.S. 63 (1977).

On employment discrimination on the basis of national origin, see, e.g., Espinoza v. Farah Manufacturing Co ., 414 U.S. 86 (1973).

64. On disparate treatment, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). On disparate impact, see Griggs v. Duke Power Co ., 401 U.S. 424 (1971).

65. Teamsters v. United States, 431 U.S. 324, 335n.15 (1977) (citations omitted).

66. See, e.g., Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989); Connecticut v. Teal, 457 U.S. 440 (1982); New York City Transit Authority v. Beazer, 440 U.S. 568 (1979); Hazelwood School District v. United States, 433 U.S. 299 (1977).

67. Although the Supreme Court has not stated how large a sample must be in order to be statistically significant, it is clear that a Title VII plaintiff must prove that an employer's selection criteria for hiring or promotion create a "significant" racial disparity ( Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 [1975]). Generally, the plaintiff must isolate the specific employment practice that is allegedly responsible for any observed statistical disparities ( Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 2124 [1989]).

68. See, e.g., United States v. Paradise, 480 U.S. 149 (1987) (state troopers); Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987) (sex discrimination involving a road dispatcher position); Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) (sheet metal workers); Local No . 93, International Association of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) (firenghters); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (teachers); Firefighters v. Stotts, 467 U.S. 561 (1984) (firefighters). For a detailed discussion of the use of statistics to prove disparate impact, see, e.g., Barbara Schlei and Paul Grossman, Employment Discrimination Law, 2d ed. (Washington, D.C.: Bureau of National Affairs, 1983), pp. 80-161; Elaine W. Shoben, "Differential Pass-Fail Rates in Employment Testing: Statistical Proof Under Title VII," Harvard Law Review 91 (1978): 793-813; "Beyond the Prima Facie Case in Employment Dis- soft

crimination: Statistical Proof and Rebuttal," Note, Harvard Law Review 89 (1975): 387-422. The Supreme Court's recent disparate-impact decision in Wards Cove Packing Co. v. Atonio (109 S. Ct. 2115 [1989]), which, among other things, places the burden on the plaintiff to disprove the business reason given by the defendant for the statistical disparity within the workplace, strikes a devastating blow to Title VII plaintiffs in such cases.

69. For an excellent discussion of Title VII legislative history, see Francis J. Vaas, "Title VII: Legislative History," Boston College Industrial and Commercial Law Journal 7 (1966): 431-458.

Transaction costs include payment of attorneys' fees up front, delay in litigation, and protracted litigation; see, e.g., Edward Levi, "The Business of the Courts: A Summary and a Sense of Perspective," Federal Rules of Decision 70 (1976): 212-223; Abraham Chayes, "The Role of the Judge in Public Law Litigation," Harvard Law Review 89 (1976): 1281-1316.

70. In a disparate-treatment class action, the plaintiff must establish that the defendant regularly and purposefully treated the plaintiff's protected class less favorably than the dominant group was treated or, in other words, that disparate treatment was not an isolated act but a systemic practice. Such disparate treatment is normally proven by statistical evidence ( Teamsters v. United States, 431 U.S. 324 [1977]; Hazelwood School District v. United States, 433 U.S. 299 [1977]) but can also be proven by testimony from numerous individuals ( Teamsters v. United States, 431 U.S. 324 [1977]) or by the adoption of broad employment practices or policies based on explicit impermissible criteria ( Dothard v. Rawlinson, 433 U.S. 321 [1977]).

71. On the use of direct evidence see, e.g., Slack v. Havens, 7 Fair Empl. Prac. Cas. (BNA) 885 (S.D. Cal. 1973), aff'd as modified, 522 F.2d 1091 (9th Cir. 1975); Gates v. Georgia-Pacific Corp ., 326 F. Supp. 397, 399 (D. Ore. 1970), aff'd. 492 F.2d 292 (9th Cir. 1974).

Although statistics can provide circumstantial evidence of discrimination in individual disparate-treatment cases (see Stuart H. Bompey and Barry N. Saltman, "The Role of Statistics in Employment Discrimination Litigation—A University Perspective," Journal of College and University Law 9 [1982]: 271), most of the time such evidence in these cases is established without the use of statistics. In McDonnell Douglas Corp. v. Green (411 U.S. 792, 802 [1973]), the Supreme Court set forth the primary nonstatistical method of establishing a prima facie case based on circumstantial evidence. It must be proven:" (i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, continue

despite his qualifications, he was rejected; and (iv) that. after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."

72. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804-805 (1973).

73. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). "The defendant need not persuade the court that it was actually motivated by the proferred reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff" (id. at 254-255). See also Board of Trustees v. Sweeney, 439 U.S. 24 (1978) (the employer's burden to dispel the adverse inference created by the plaintiff's prima facie case is merely to "articulate" some legitimate, nondiscriminatory reason for the action, not to prove the absence of discriminatory motive); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978) (the employers burden in rebutting a prima facie case is to show that the employment decision was based on a legitimate consideration and not on an illegitimate one such as race). Thus the ultimate burden of persuasion as to the issue of discrimination always remains with the plaintiff. For a discussion of the law on this subject prior to Burdine, see Miguel Mendez, "Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases," Stanford Law Review 32 (1980): 1129-1162.

74. See, e.g., Green v. McDonnell Douglas Corp ., 528 F.2d 1102 (8th Cir. 1976) (plaintiff fails to prove pretext).

75. See, e.g., Banerjee v. Board of Trustees of Smith College, 648 F.2d 61, 66 (1st Cir. 1981), cert. denied, 454 U.S. 1098 (1981) (subjective reasons for tenure denial); Powell v. Syracuse University 580 F.2d 1150, 1156 (2d Cir. 1978), cert. denied, 439 U.S. 984 (1978) (reasons given for inadequate teaching ability were arguably subjective).

76. Referring to the use of fairness as a principle on which to allocate the burden of proof, Edward W. Cleary states: "The nature of a particular element may indicate that evidence relating to it lies more within the control of one party, which suggests the fairness of allocating that element to him" ("Presuming and Pleading: An Essay on Juristic Immaturity," Stanford Law Review 12 [1959]: 5). Thus, placing the burden of persuasion on the plaintiff regarding the defendant's "legitimate, nondiscriminatory reason" is hardly compelling from a fairness perspective.

77. See, e.g., Wards Cove Packing Co. v. Atonio . 109 S. Ct. 2115, 2124 (1989).

78. For example, the Court in Wards Cove Packing Co. v. Atonio, a disparate-impact case, relied on Texas Department of Community Affairs v. Burdine (450 U.S. 248 [1981]), a disparate-treatment case, for continue

the proposition that the plaintiff carries the burden of persuasion as to all specific elements of a Title VII case, including the burden of disproving an employer's business justification for a discriminatory employment condition ( Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 2125-2126 [1989]).

79. See, e.g., Bibbs v. Block, 36 Fair Empl. Prac. Cas. (BNA) 713 (8th Cir. 1984).

80. See Mark Brodin, "The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective," Columbia Law Review 82 (1982): 297. This article provides an excellent analysis of causation prior to Price Waterhouse v. Hopkins (109 S. Ct. 1775 [1989]), discussed later in this chapter. The purpose of Title VII is quoted from H. Rept. 914, 88th Cong., 1st sess., p. 26 (1963); reprinted in United States Congressional and Administrative News (1964), p. 2401. See also United Steelworkers of America v. Weber, 443 U.S. 193, 202 (1979).

81. 29 U.S.C. §§ 151-169 (1982); on the act's remedial provisions, see Albermarle Paper Co. v. Moody, 422 U.S. 405, 419n.11 (1975).

82. 42 U.S.C. § 2000e-5(g) (1982 and Supp. I 1983).

83. Member of Congress Emmanual Celler, who introduced the amendment, stated: "Mr. Chairman, the purpose of the amendment is to specify cause. Here the court, for example, cannot find any violation of the act which is based on facts other—and I emphasize 'other'—than discrimination on the grounds of race, color, religion, or national origin. The discharge might be based, for example, on incompetence or a morals charge or theft, but the court can only consider charges based on race, color, religion, or national origin. That is the purpose of this amendment" (110 Congressional Record [1964], p. 2567).

84. See Brodin, "Standard of Causation," pp. 297-299.

85. Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1785n.7 (1989) (citing 110 Congressional Record [1964], p. 13837.

86. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973); emphasis added.

87. McDonald v. Santa Fe Trail Transportation Co ., 427 U.S. 273, 282n.10 (1976)

88. Price Waterhouse v. Hopkins, 109 S. Ct., 1775, 1797, 1806-1807 (1989).

89. Id. at 1785, 1786.

90. Id. at 1795.

91. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).

92. Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1804 (1989). break

93. See Bibbs v. Block, 778 F.2d 1318, 1320-1324 (8th Cir. 1985); Bellissimo v. Westinghouse Electric Corp ., 764 F.2d 175, 179 (3d Cir. 1985), cert. denied, 475 U.S. 1035 (1986); Ross v. Communications Satellite Corp ., 759 F.2d 355, 365-366 (4th Cir. 1985); Peters v. City of Shreveport, 818 F.2d 1148, 1161 (5th Cir. 1987); McQuillen v. Wisconsin Education Association Council, 830 F.2d 659, 664-665 (7th Cir. 1987); Fields v. Clark University, 817 F.2d 931, 936-937 (1st Cir. 1987); Berl v. Westchester County, 849 F.2d 712, 714-715 (2d Cir. 1988); Terbovitz v. Fiscal Court of Adair County, Ky ., 825 F.2d 111, 115 (6th Cir. 1987); Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1165-1166 (9th Cir. 1984); Bell v. Birmingham Linen Services, 715 F.2d 1552, 1557 (11th Cir. 1983); Price Waterhouse v. Hopkins, 825 F.2d 458, 420-471 (D.C. Cir. 1987), reversed and remanded, 109 S. Ct. 1775 (1989).

94. See Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1795 (1989).

95. Id. at 1784-1788.

96. Id. at 1784, 1784n.2.

97. Id. See also Brodin, "Standard of Causation," p. 323. Title VII remedies are set out in 42 U.S.C. § 2000e-5(g).

98. 42 U.S.C. § 2000e-5(g).

99. 42 U.S.C. § 2000e-5(k).

100. Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1792-1793 (1989).

101. Id. at 1796.

102. See, e.g., Roy L. Brooks, "Civil Rights Scholarship: A Proposed Agenda for the Twenty-First Century," University of San Francisco Law Review 20 (1986): 410; Elizabeth Bartholet, "Application of Title VII to Jobs in High Places," Harvard Law Review 95 (1982): 959-978.

103. Bartholet, "Application of Title VII," p. 961 (quoting Powell v. Syracuse University, 580 F.2d 1150, 1153 [2d Cir. 1978], cert. denied, 439 U.S. 984 [1978]).

104. Faro v. New York University, 502 F.2d 1229, 1231-1232 (2d Cir. 1974). See also Huang v. College of the Holy Cross, 436 F. Supp. 639, 653 (D. Mass. 1977); Johnson v. University of Pittsburgh, 435 F. Supp. 1328, 1353-1354 (W.D. Pa. 1977); Cussler v. University of Maryland, 430 F. Supp. 602, 605-606 (D. Md. 1977); Peters v. Middlebury College, 409 F. Supp. 857, 868 (D. Vt. 1976); Labat v. Board of Education, 401 F. Supp. 753, 757 (S.D.N.Y. 1975); Moore v. Kibbee, 381 F. Supp. 834, 839 (E.D.N.Y. 1974); Megill v. Board of Regents of the State of Florida, 541 F.2d 1073 (5th Cir. 1976); Stebbins v. Weaver, 537 F.2d 939, 943 (7th Cir. 1976), cert. denied, 429 U.S. 1041 (1977); Duke v. North Texas State University, 469 F.2d 829. 838 (5th Cir. 1972), cert. denied, 412 U.S. 932 (1973); EEOC v. Tufts Institution of Learning, 421 F. Supp. continue

152, 158 (D. Mass. 1975); Keddie c. Pennsylvania State University, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976); Green v. Board of Regents of Texas Tech University, 335 F. Supp. 249, 251 (N.D. Texas 1971), aff'd 474 F.2d 594 (5th Cir. 1973); Lewis v. Chicago State College, 299 F. Supp. 1357, 1360 (N.D. 1ll. 1969).

105. 42 U.S.C. § 2000e-1 (1970).

106. The exemption was proposed in a substitute bill submitted by senators Dirksen and Mansfield and later adopted by both the Senate and the House. See Powell v. Syracuse University, 580 F.2d 1150, 1153 (2d Cir. 1978), cert. denied, 439 U.S. 984 (1978).

107. 42 U.S.C. § 2000e (1982).

108. See H. Rept. 92-238 (1971), 92d Congress, 1st sess., p. 17; S. Rept. 92-415 (1971), 92d Congress, 1st sess., p. 10. For discussion of Title VII's legislative history, see Roy L. Brooks, "Beyond Civil Rights Restoration Legislation: Restructuring Title VII," Saint Louis University Law Journal 34 (1990): 551-566; Vaas, "Title VII: Legislative History."

109. E. R. Shipp, "The Litigiousness of Academe," New York Times, November 8, 1987, sec. 12.

110. Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 448-449 (1986). The Court is quoting from United Steelworkers of America v. Weber, 443 U.S. 193, 203 (1979) (quoting 110 Congressional Record [1964], p. 6548 [remarks of Sen. Humphrey]). The Court also stated that "Title VII was designed 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees'" ( Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 448 [1986] [quoting Griggs v. Duke Power Co ., 401 U.S. 424, 429-430 (1971)]). See also Teamsters v. United States, 431 U.S. 324, 364-365 (1977); Franks v. Bowman Transportation Co ., 424 U.S. 747, 763 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975).

1. Rose, American Profile, p. 8.

2. Id., p. 21.

3. The statistical information presented in this list is taken from id., PP. 12-13, 21-22.

4. "Social Issues: The Roots of Poverty," Time, January 5, 1987, p. 49. For additional information on the rise in poverty during this period, see Kornblum and Julian, Social Problems, p. 233, which cites government studies and other sources. break

5. Irrational economic habits basically entail living beyond one's financial means and misallocating household Funds-for example, piling up consumer debt, foregoing savings and investments in order to purchase expensive consumer goods, or buying late-model cars that require not only high monthly payments but also more costly insurance, taxes, and maintenance. Living life for the moment, from paycheck to paycheck or weekend to weekend, and without direction or the constraints of a life-plan—how to prepare for retirement, for example, or how to afford the expenses of raising children—can result in a lifestyle that depletes one's finances.

Crime, drug abuse, and alcoholism can also threaten to destabilize working-class families both financially and emotionally. Any family can become distracted, enervated, or even torn apart by a teenager's criminal acts, a mother's drug addiction, or a father's alcoholism.

6. U.S. Bureau of the Census, Statistical Abstract of the United States, 1986, 107th ed. (Washington, D.C.: U.S. Government Printing Office, 1987), p. 423.

7. See, e.g., Richard Edwards, Contested Terrain: The Transformation of the Workplace in the Twentieth Century (New York: Basic Books, 1979); Macionis, Sociology, p. 243.

8. On the existence of racial wage gaps, see Farley and Allen, Color Line, p. 317; also pp. 316-361. Plants, factories, mills, and other industrial facilities have been "a major source of black employment in the twentieth century" (Wilson, The Truly Disadvantaged, p. 45). During the past twenty years, these industries have experienced economic decline, caused by many factors: competition from abroad (especially Japan and Germany), which provided cheaper and superior products; the tendency (often in response to such competition) to export capital and jobs overseas, where labor is less expensive and more plentiful; the failure to modernize existing industrial facilities, resulting in part from the shift of capital abroad (Kornblum and Julian, Social Problems, p. 437). Layoffs came, and African American workers were among the first to go; they were usually the last hired and hence were unprotected by seniority or even affirmative action (see, e.g., Firefighters v. Stotts, 467 U.S. 561 [1984]). Unions were often prepared to accept these losses without a challenge; indeed, many unions have poor track records when it comes to supporting the interests of African Americans in equal employment opportunity. See, e.g., United Steelworkers of America v. Weber, 443 U.S. 193 (1979); Local 28, Sheet Metal Workers v. EEOC, 106 S. Ct. 3019 (1986); Local No. 93, International Association of Firefighters v. City of Cleveland, 106 S. Ct. 3063 (1986); Martin v. Wilks, . 109 S. Ct. 2180 (1989). break

9. Elizabeth Hann Hastings and Philip K. Hastings, eds., Index to International Public Opinion, 1987-1988 (New York: Greenwood Press. 1989), p. 467.

10. See, e.g., John R. Logan and Mark Schneider, "Racial Segregation and Racial Change in American Suburbs, 1970-1980," American Journal of Sociology 89 (January 1984): 874-888; Annemette Sorensen, Karl E. Taeuber, and Leslie Hollingsworth, Jr., "Indexes of Racial Residential Segregation for 109 Cities in the United States, 1940 to 1970," Sociological Focus 8 (April 1975): 125-142; Charles Hirschman, "America's Melting Pot Reconsidered," Annual Review of Sociology 9 (1983): 397-423; John O. Calmore, "National Housing Policies and Black America: Trends, Issues, and Implications," in The State of Black America 1986, ed. Janet Dewart (New York: National Urban League, 1986), pp. 115-149; Reynolds Farley, "The Residential Segregation of Blacks from Whites: Trends, Courses, and Consequences," in Issues in Housing Discrimination: A Consultation/Hearing of the United States Commission on Civil Rights, Washington, D.C., November 12-13, 1985 (Washington, D.C.: U.S. Civil Rights Commission, 1986), vol. 1, Papers Presented, pp. 14-19.

11. Farley and Allen, Color Line, pp. 143 (table 5.7), 145. See also Karl E. Taeuber, "Causes of Residential Segregation," in The Fair Housing Act After Twenty Years: A Conference at Yale Law School, March 1988, ed. Robert G. Schwemm (New Haven, Conn.: Yale Law School, 1989), P. 37.

12. Hastings and Hastings, Index, p. 468.

13. National Opinion Research Center, General Social Surveys, 1972-1983, p. 117.

14. In 1980, for example, 68 percent of whites were homeowners, whereas only 44 percent of African Americans owned a home (Farley and Allen, Color Line, p. 155).

15. Id., p. 156.

16. See id., pp. 155-157; Charles M. Haar and Daniel W. Fessler, The Wrong Side of the Tracks (New York: Simon and Schuster, 1986); Ralph Ellison, Invisible Man (New York: Random House, 1952).

17. West's Federal Practice Digest Edition, 1975 to Date, Civil Rights Sec. 11.5.

18. African Americans were plaintiffs in eight of the fifteen available cases (53.33 percent) and won five of these cases (62.5 percent). There were no white-only plaintiffs. For further discussion, see Smith, "JuriStatistical Methods in Legal Research."

19. The studies reported in the next several paragraphs are collected, along with others, in several sources. One of the best is Department continue

of Housing and Urban Development, Fair Housing Enforcement Demonstration (Washington, D.C.: U.S. Department of Housing and Urban Development, Office of Policy Development and Research, 1983), esp. pp. 23-28, 37-44.

20. Id., pp. 23-28.

21. These incidents were reported in "Eight Whites Shot by Black Man After Harassment," Los Angeles Times (San Diego ed.), June 12, 1986, pt. 1; William K. Stevens, "Philadelphia Neighborhood Is Starting to Simmer Down," New York Times, December 1, 1985, sec. 1 (main); "The Racism Next Door," Time, June 30, 1986, p. 40; William Celis III, "Justice, HUD Oppose Housing Segregation, But Enforcement Lags," Wall Street Journal, October 28, 1985.

22. It is less common to encounter overt acts of racism today, although incidents such as those in Howard Beach, New York, and in Forsyth County, Georgia, should not be discounted. In December 1986, three African Americans who walked into a diner in the Howard Beach neighborhood of Queens to use a telephone were chased and beaten by a gang of whites, resulting in the death of one of the African Americans, who was forced into the path of an oncoming car by the attack. In Forsyth County in January 1987, the Ku Klux Klan stoned a predominantly African American group that was marching to commemorate Dr. Martin Luther King's birthday. See "Black vs. White in Howard Beach," Time, January 5, 1987, p. 48; "Fear of Blacks, Fear of Crime," New York Times, December 28, 1986, sec. 4 (Week in Review). See also Walter Leavy, "What's Behind the Resurgence of Racism in America?" Ebony, April 1987, pp. 132-139; Samuel Freedman, "Racial Tension in New York Is on Increase Despite Gains," New York Times, March 29, 1987, sec. 1 (main); Janice Simpson, "Black College Students Are Viewed as Victims of a Subtle Racism," Wall Street Journal, April 3, 1987; "Wrong Message from Academe," Time, April 6, 1987, p. 57; Joe Davidson, "Private Schools for Black Pupils Are Flourishing," Wall Street Journal, April 15, 1987. See generally Harry S. Ashmore, Hearts and Minds: The Anatomy of Racism from Roosevelt to Reagan (New York: McGraw-Hill, 1982).

23. Al Campanis, a former major-league baseball player, was fired from his position as vice-president for player personnel for the Los Angeles Dodgers, the third-highest position in the organization, for the bush-league bigotry he displayed in a television interview on ABC's "Nightline" on April 6, 1987. When asked by anchor Ted Koppel why there were no black managers, coaches, or owners in baseball, Campanis responded that blacks may lack "some of the necessities" for holding managerial positions. After a "flabbergasted" Koppel gave him a chance continue

to remove his foot from his mouth, Campanis stuck it in deeper by remarking—from out of left field—that "blacks are not good swimmers because they don't have the buoyancy" ("Grapevine," TV Guide [San Diego ed.], April 18-24, 1987, p. A-2; Sam McManis, "Campanis Fired in Wake of Racial Remarks," Los Angeles Times [San Diego ed.], April 9, 1987, pt. 3).

For an exploration of feelings that are more hidden, see, e.g., Brooks, "Anti-Minority Mindset," pp. 101-104, 107.

24. "Racism Next Door," p. 40.

25. Other examples of smiling discrimination include the sales clerk in a suburban shopping mall who waits on a white customer before waiting on a minority customer who was there first and the nightclub owner who imposes a dress code designed to keep minorities out or who makes it a policy to play a certain type of music (for example, country and western) when "too many" African Americans are on the dance floor. See, e.g., "Shop Here, But Don't Stop Here," Time, March 10, 1986, p. 46; "Come Back When You're White," San Diego Reader, July 26, 1984; "Subtle Racism Said to Prevail in East Country Area," East County Today (San Diego), November 30, 1983; Christopher Reynolds, "Incidents of Racism Increase," San Diego Union, December 31, 1983.

26. "Racism Next Door," p. 40.

27. See Kornblum and Julian, Social Problems, p. 272; Fowler v. McCrory, 1989 U.S. District Lexis 15479, p. 13. See generally Mackey v. Nationwide Insurance Companies, 724 F.2d 419 (4th Cir. 1984).

28. Farley and Allen, Color Line, p. 203.

29. See T. Harry Williams, Richard N. Current, and Frank Freidel, A History of the United States to 1877, 3d ed. (New York: Alfred A. Knopf, 1969), p. 90; Arthur O. White, "The Black Leadership Class and Education in Antebellum Boston," Journal of Negro Education 42 (1973): 505-515; Carter G. Woodson, The Education of the Negro Prior to 1861 (Washington, D.C.: Associated Publishers, 1919).

30. See Williams, Current, and Freidel, History of the United States, p. 439; Bell, Race, Racism, and American Law, pp. 365-366. On the education of African Americans in the North and South at the turn of the eighteenth century, see Franklin, From Slavery to Freedom, pp. 160-161.

31. Bell, Race, Racism, and American Law, p. 366. See also Stanley K. Schultz, The Culture Factory: Boston Public Schools, 1789-1860 (New York: Oxford University Press, 1973), pp. 159-161.

32. Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1850).

33. In 1980, 62.9 percent of African American children attended schools that enrolled 50 percent or more minority students, in contrast continue

to the 76.6 percent who attended such schools in 1968. In 1980, 33.2 percent of African American children were in schools with 90-100 percent minority students, down from the 64.3 percent who attended these schools in 1968. The pace of desegregation has slowed considerably since 1976; for discussion of this trend, see Gary Orfield, Public School Desegregation in the United States, 1968-1980 (Washington, D.C.: Joint Center for Political Studies, 1983), p. 4. More than 90 percent of the students in some metropolitan area schools are African American or Hispanic (Kornblum and Julian, Social Problems, p. 382).

34. Hochschild's excellent analysis, from which I draw in the next several paragraphs, appears in her books Thirty Years After Brown (Washington, D.C.: Joint Center for Political Studies, 1985); and The New American Dilemma: Liberal Democracy and School Desegregation (New Haven, Conn.: Yale University Press, 1984).

35. Hochschild, Thirty Years After Brown, p. 5.

36. Id. In my opinion, the practice of tracking should be abandoned altogether. Educational studies show that although students in the higher tracks may gain slightly from tracking, students in the bottom tracks tend to lose ground (id.; Chen-Lin Kulik and James Kulik, "Effects of Ability Grouping on Secondary School Students: A Meta-Analysis of Evaluation Findings," American Educational Research Journal 19 [Fall 1982]: 415-428.

37. Hochschild, Thirty Years After Brown, pp. 5-6.

38. Id., p. 12. Most studies have found that the younger the children are when desegregation occurs, the more successful the desegregation process, by any measure (id., pp. 12-13). See also Willis Hawley, "Equity and Quality in Education: Characteristics of Effective Desegregated Schools," in Effective School Desegregation: Equity, Quality, and Feasibility, ed. Willis Hawley (Beverly Hills, Calif.: Sage, 1981), pp. 297-307.

39. Hochschild, Thirty Years After Brown, pp. 12, 46n.29.

40. Robert L. Carter, "A Reassessment of Brown v. Board, " in Shades of Brown: New Perspectives on School Desegregation, ed. Derrick A. Bell, Jr. (New York: Teachers College Press, 1980), pp. 20-28.

41. Derrick A. Bell, Jr., "Serving Two Masters: Integration Ideals and Client Interest in School Desegregation Litigation," Yale Law Journal 85 (1976): 471-472. Bell's volume Shades of Brown is cited in full in note 40, above.

42. Philip E. Converse et al., American Social Attitudes Data Sourcebook: 1947-1978 (Cambridge, Mass.: Harvard University Press, 1980), pp. 61, 91.

43. See, e.g., Hochschild, Thirty Years After Brown, p. 27.

44. Id.

45. Ottawa v. Tinnon, 26 Kan. 1, 19 (1881). break

46. Because of inadequate resources, however, African American suburban schools often provide basic education that is only marginally better than that provided by inner-city schools; see, e.g., Hochschild, Thirty Years After Brown, p. 8; William P. O'Hare et. al., Blacks on the Move: A Decade of Demographic Change (Washington, D.C.: Joint Center for Political Studies, 1982), pp. 21, 49-66.

47. A study of twenty thousand American men showed that 12 percent of those with a high school education or less experienced intergenerational upward mobility, whereas 76 percent of those with a graduate or professional degree experienced such mobility (Peter M. Blau and Otis Dudley Duncan, The American Occupational Structure, 2d ed. [New York: Free Press, 1978], p. 57). See also Smith and Welch, Closing the Gap, pp. 21-41.

48. See U.S. Bureau of the Census, Census of Population and Housing: 1980, Public Use Microdata Samples (Washington, D.C.: U.S. Government Printing Office, 1981).

49. For further discussion of this and other studies, see James W. Vander Zanden, The Social Experience (New York: Random House, 1988), p. 476; Linda M. Watkins, "Losing Ground: Minorities' Enrollment in College Retreats After Surge in '70s," Wall Street Journal, May 29, 1985; "Dramatic Drops for Minorities: Black and Hispanic Enrollments Are Down at All College Levels," Time, November 11, 1985, p. 84.

50. Reginald Wilson and Deborah J. Carter, Eighth Annual Status Report on Minorities in Higher Education (Washington, D.C.: American Council on Education, 1989), pp. 1, 2, 20, table 1. See also Edward Fiske, "Enrollment of Minorities in Colleges Stagnating," New York Times, April 19, 1987, sec. 1 (main).

51. Wilson and Carter, Eighth Annual Status Report, pp. 10, 25-27, tables 4-6.

52. Farley and Allen, Color Line, pp. 145-148.

53. Id., p. 148; see generally pp. 148-150; Donald S. Massey and Nancy A. Denton, "Hypersegregation in U.S. Metropolitan Areas: Black and Hispanic Segregation along Five Dimensions," Demography 26 (August 1989): 373-391.

54. The equal protection clause of the Fourteenth Amendment protects individuals against legislative action or private action conducted "under the color of state law." The Fifth Amendment, which protects individuals against federal action, has an equal protection component in its due process clause that is coextensive with that of the Fourteenth Amendment. See, e.g., United States v. Paradise, 480 U.S. 149, 166n.16 (1987).

55. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp ., 429 U.S. 252 (1977); City of Eastland v. Forest City continue

Enterprises, Inc ., 426 U.S. 668 (1976); James v. Valtierra, 402 U.S. 137 (1971). Land-use barriers may, of course, discriminate on the basis of economic status, but such discrimination apparently does not merit constitutional protection; see Dandridge v. Williams, 397 U.S. 471, 485-486 (1970); in accord, Jefferson v. Hackney, 406 U.S. 535, 547 (1972). See also Boddie v. Connecticut, 401 U.S. 371 (1971), in which the claims of indigents who were unable to pay divorce filing fees were treated as due process rather than as equal protection claims.

56. Washington v. Davis, 426 U.S. 229, 244-245 (1976).

57. See, e.g., Rogers v. Lodge, 458 U.S. 613 (1982); City of Mobile v. Bolden, 446 U.S. 55 (1980); Village of Arlington Heights v. Metropolitan Housing Development Corp ., 429 U.S. 252 (1977).

58. Village of Arlington Heights v. Metropolitan Housing Development Corp ., 429 U.S. 252, 266 (1977).

59. Rogers v. Lodge, 458 U.S. 613, 618 (1982). "Relevant facts" include the magnitude of the disparity, foreseeability of the consequences of the government's actions, legislative history, patterns of conduct, and the government's knowledge of the disparate impact ( Dowdell v. City of Apopka, 698 F.2d 1181, 1186 [11th Cir. 1983]). See also Zimmer v. McKeithan, 485 F.2d 1297, 1305-1307 (5th Cir. 1973), aff'd per curiam on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976).

60. Personnel Administrator v. Feeney, 442 U.S. 256 (1979).

61. Id. at 279.

62. Rogers v. Lodge, 458 U.S. 613, 643, 645 (1982).

63. Id. at 647.

64. For further discussion of the intent test in a legislative context, see John Ely, "Legislative and Administrative Motivation in Constitutional Law," Yale Law Journal 79 (1970): 1205-1340; "Legislative Motivation," Symposium, San Diego Law Review 15 (1978): 925-1183.

65. Zimmer, Sullivan, and Richards, Cases and Materials on Employment Discrimination, p. xxxiv.

66. For a discussion of the distinction between voluntary and involuntary racial preferences, see Roy L. Brooks, "Affirmative Action in Law Teaching," Columbia Human Rights Law Review 14 (1982): 25-27. On the importance of voluntary use of racial preferences, see, e.g., Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 616n.8 (1987) (cases cited); United Steelworkers of America v. Weber, 443 U.S. 193, 204 (1979). On the use of the benign quotas in housing, see, e.g., Bell, Race, Racism, and American Law, pp. 535-541. break

67. See Bruce Ackerman, "Integration for Subsidized Housing and the Question of Racial Occupancy Controls," Stanford Law Review 26 (1974): 251-253; Grover Hankins, "Starrett City and Other Race-Conscious Methods of Achieving Integration," in Schwemm, The Fair Housing Act After Twenty Years, pp. 109-110.

68. Newman's testimony is quoted from United States v. Starrett City Associates, 660 F. Supp. 668, 673-674 (E.D.N.Y. 1987), aff'd, 840 F.2d 1096 (2d Cir. 1988), cert. denied, 109 S. Ct. 376 (1988).

69. Anthony Downs, Opening Up the Suburbs (New Haven, Conn.: Yale University Press, 1973), p. 99. For discussion of additional social science data, see Bell, Race, Racism, and American Law, PP. 531-532, 535-537. See also Issues in Housing Discrimination: A Consultation/Hearing of the United States Commission on Civil Rights, Washington, D.C., November 12-13, 1985 (Washington, D.C.: U.S. Civil Rights Commission, 1986), vol. 1, Papers Presented, pp. 145-199 (papers presented by Roger Starr, Rodney A. Smolla, and Oscar Newman).

70. For decisions in which courts have upheld the use of racial occupancy controls, see e.g., Schmidt v. Boston Housing Authority, 505 F. Supp. 988 (D.C. Mass. 1981); Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). For decisions in which use of such controls was not upheld, see, e.g., Williamsburg Fair Housing Commission v. N.Y.C. Housing Authority, 493 F. Supp. 1225 (S.D.N.Y. 1980). See also Rodney Smolla, "Integration Maintenance: The Unconstitutionality of Benign Programs That Discourage Black Entry to Prevent White Flight," Duke Law Journal 1981 (1981): 891-939.

71. United States v. Starrett City Associates, 660 F. Supp. 668 (E.D.N.Y. 1987), aff'd, 840 F.2d 1096 (2d Cir. 1988), cert. denied, 109 S. Ct. 376 (1988). Starrett City was decided on statutory grounds, namely, the Fair Housing Act (id. at 677). The district court distinguished it from Otero on the grounds that Otero was decided on a constitutional standard (id. at 677-678). This distinction is somewhat odd, because the Constitution is generally more restrictive in the use of racial classifications than Congress is (see, e.g., Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 627-628n.6 [1987]). Starrett City is the major case in the Reagan administration's long assault on racial occupancy quotas; see Robert G. Schwemm, "Introduction," in Schwemm, The Fair Housing Act After Twenty Years, p. 12.

72. Fair Housing Act of 1968 (Title VIII), Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as amended at 42 U.S.C. §§ 3601-3619 [1982 and Supp. 1987]). break

73. See, e.g., John O. Calmore, "Proving Housing Discrimination: Intent vs. Effect and the Continuing Search for the Proper Touchstone," in Issues in Housing Discrimination, vol. 1. Papers Presented, pp. 77-92.

74. 42 U.S.C. §§ 3604-3606.

75. Id. at §§ 3604, 3605, 3601.

76. Roger Spencer, "Enforcement of Federal Fair Housing Law," Urban Lawyer 9 (1977): 514. The policy behind the 1949 Housing Act is stated in 42 U.S.C. § 1441 (1970).

77. These exemptions are codified in 42 U.S.C. §§ 3603(b)(1), 3603(b)(2).

78. Reitman v. Mulkey, 387 U.S. 369 (1967).

79. 42 U.S.C. § 3612(c). The next section of this chapter discusses damages in greater detail.

80. Id. at §§ 3610, 3612.

81. See "Racism Next Door" p. 40; Celis, "Justice, HUD Oppose Housing Segregation."

82. See Brooks, "Use of the Civil Rights Acts of 1866 and 1871," pp. 258, 261-262 (sources cited therein).

83. 42 U.S.C. § 1982.

84. Jones v. Alfred H. Mayer, 392 U.S. 409, 412-413 (1968); emphasis in original. See also "Civil Rights—Racial Discrimination and Property Rights: The Scope of 42 U.S.C. § 1982," Note, Wayne Law Review 29 (1982): 203-239.

85. Jones v. Alfred H. Mayer, 392 U.S. 409, 441-442 (1968). Although Justice White believes that the intent test applies to section 1982 actions ( City of Memphis v. Green, 451 U.S. 101, 129 [1981]), the Court itself has not so ruled. The Court has, however, ruled that Section 1982's sister provision, Section 1981 (42 U.S.C. § 1981 [1982]), requires proof of intent to discriminate ( General Building Contractors Association v. Pennsylvania, 458 U.S. 375 [1982]). See "Dead-End Street: Discrimination, the Thirteenth Amendment, and Section 1982, City of Memphis v. Green, " Comment, Chicago-Kent Law Review 58 (1982): 873-905.

86. See, e.g., Marable v. Walker, 704 F.2d 1219 (11th Cir. 1983) (trial court limited damages to $ 1,000). But see also Philips v. Hunter Trails Community Association, 685 F.2d 184, 191 (7th Cir. 1982) ($ 100,000 in punitive damages awarded under Section 1982).

87. See James A. Kushner, Fair Housing: Discrimination in Real Estate, Community Development, and Revitalization, with annual supplements (Colorado Springs: Shepards/McGraw-Hill, 1983), p. 478; Bell, Race, Racism, and American Law, 516-520. See also Philips v. Hunter Trails Community Association, 685 F.2d 184, 190 (7th Cir. 1982). break

88. Office of the Attorney General of California, John K. Van de Kamp, news release, July 10, 1986, Sacramento, California, p. 1.

89. Bell, Race, Racism, and American Law, pp. 516-518.

90. In particular, civil rights litigation in which the trial court retains subject-matter jurisdiction, such as school desegregation cases, seems never-ending; see, e.g., Chayes, "Role of the Judge."

91. See, e.g., Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977); Austin Independent School District v. United States, 429 U.S. 990 (1976) (remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229 [1976] and Village of Arlington Heights v. Metropolitan Housing Development Corp ., 429 U.S. 252 [1977]).

92. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). See also Missouri v. Jenkins, 1105. Cf. 1651 (1990).

93. Davis v. Board of School Commissioners, 402 U.S. 33, 37 (1971); emphasis added.

94. See, e.g., Douglas Longshore and Jeffrey Prager, "The Impact of School Desegregation: A Situational Analysis," Annual Review of Sociology 11 (1985): 75-91.

95. Milliken v. Bradley [Milliken I], 418 U.S. 717, 743-744 (1974).

96. See, e.g., Kelly v. Metropolitan County Board of Education of Nashville and Davidson County, Tenn ., 687 F.2d 814 (6th Cir. 1982), cert. denied, 459 U.S. 1183 (1983); Clark v. Board of Education of Little Rock School District, 705 F.2d 265 (5th Cir. 1983).

97. Millken v. Bradley [Milliken II], 433 U.S. 267, 281 (1977).

98. See, e.g., the cases cited in note 96, above (Chapter 3).

99. The prototype desegregation plan for predominantly African American schools has come to be known as the "Atlanta Compromise." Implemented in 1973 in Atlanta, Georgia, the compromise gave African Americans the right to obtain control of the predominantly African American Atlanta school district and to select an African American educator as superintendent. They were also given financial backing to implement an ambitious educational enrichment program that gave special emphasis to mathematics and reading by a most unusual feature: the school board was given power to set its own tax rate without having to resort to a public referendum to raise money. The assessed valuation on Atlanta's commercial and residential property nearly doubled, from $ 2.7 billion in 1973 to $ 5 billion in 1986. The only major problem with the compromise, from my point of view, was the lack of cultural diversity. Atlanta's demographics meant that there were simply not enough whites in the school district to make racial balancing meaningful, and the Supreme Court's restrictions on interdistrict remedies ( Milliken v. Bradley, 418 U.S. 717 [1974]) made cultural diversity in Atlanta public schools not even a remote possibility. For more on the Atlanta continue

Compromise, see Dudley Clendinen, "Urban Education That Really Works," New York Times, April 13, 1986, sec. 12 (Educational Life, special section).

100. For a full discussion of the problems of standardized testing, see Howard F. Taylor, The I.Q. Game: A Methodological Inquiry into the Heredity-Environment Controversy (New Brunswick, N.J.: Rutgers University Press, 1980).

101. Duffey is quoted in Fiske, "Enrollment of Minorities." See also Brent Staples, "The Dwindling Black Presence on Campus," New York Times Magazine, April 27, 1986, p. 52; Watkins, "Losing Ground"; Simpson, "Black College Students"; "Dramatic Drops for Minorities"; "Wrong Message from Academe." There has also been a general increase in racial tension throughout America; see Leavy, "What's Behind the Resurgence of Racism?"; Freedman, "Racial Tension in New York"; David Hatchett, "The State of Race Relations," Crisis, November 1989, pp. 14-19. Europe has also experienced an increase in racial problems ("Rising Racism on the Continent," Time, February 6, 1984, pp. 40-45).

102. Simpson, "Black College Students."

103. These incidents are reported, respectively, in id.; Staples, "Dwindling Black Presence on Campus," p. 52; and Watkins, "Losing Ground."

104. Simpson, "Black College Students."

105. See, e.g., Staples, "Dwindling Black Presence on Campus," p. 46; Elizabeth Kolbert, "Minority Faculty: Bleak Future," New York Times, August 18, 1985, sec. 12 (Education, special section); "Minorities Studies Show More Students But Fewer Teachers," San Diego Union, February 9, 1986; Thomas Johnson, "Ivy League Blacks Find Life in Microcosm on the Campus," New York Times, May 20, 1979, sec. 1 (main).

The shortage of African American faculty tends to feed on itself. "If a black child never encounters a black professional, that suggests a lot to him about his own potential" ( San Diego Union, February 9, 1986, interview with H. Dean Propst, chancellor of the University of Georgia).

106. Hastings and Hastings, Index, p. 467.

107. See Watkins, "Losing Ground"; Wayne King, "Bakke Case Still Affects Davis Medical School," New York Times, December 6, 1981, sec. 1 (main).

108. William Raspberry, "Aid That Isn't Charity," Washington Post, April 13, 1987.

109. Cook is quoted in id. See also Vander Zanden, The Social Experience, p. 476.

110. Staples, "Dwindling Black Presence on Campus," pp. 51-52. break

111. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

112. Id. at 320, 414. Pertinent sections of the Civil Rights Act are found at 42 U.S.C. § 2000d-2000d-4 (1982).

113. Regents of the University of California v. Bakke, 438 U.S. 265, 314-316, 370-378 (1978).

114. Id. at 358-362, 327.

115. Id. at 387, 294-295.

116. See, e.g., City of Richmond v. J. A. Croson Co ., 109 S. Ct. 706 (1989); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

117. King, "Bakke Case."

118. Id.

119. "Affirmative action, in its most fundamental form, simply instructs the employer to look beyond traditional qualifications and to look at the 'whole person.' This means that the employer should be conscious of the applicant's race or gender as well as such neutral qualities as motivation, how far the person has traveled to get to where he or she is today, and whether the person satisfies a legitimate institutional interest (e.g., educational diversity or maximization of the institution's total utility) or social responsibility (e.g., maximization of antidiscrimination values or acting as responsible neighbors in the community). Given the legacy of slavery and legalized segregation, this is the only manner in which most minorities can realistically compete with whites on an equal footing today" (Brooks, "Civil Rights Scholarship," p. 403 [citations omitted]).

120. Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 450 (1986).

1. See U.S. Bureau of the Census, Current Population Reports: Money Income and Poverty Status, 1988, p. 127; Rose, American Profile, p. 7.

2. Rose, American Profile, p. 21.

3. Ken Auletta, The Underclass (New York: Random House, 1982).

4. "The Vanishing Black Family: Crisis in Black America," CBS Reports, January 25, 1986, television documentary.

5. The conference proceedings are reported in "Joint Center for Political Studies Conference Report: Defining the Underclass," Focus, June 1987, pp. 8-12. The consensus definition is cited in id., p. 11.

6. See id., p. 9; Wilson, The Truly Disadvantaged, p. 10.

7. Rose, American Profile, p. 35. break

8. See "Joint Center for Political Studies Conference Report"; Wilson, The Truly Disadvantaged, p. 60; Vander Zanden, The Social Experience, p. 239; Isabel V. Sawhill, "Poverty and the Underclass," in Challenge to Leadership: Economic and Social Issues for the Next Decade, ed. Isabel V. Sawhill (Washington, D.C.: Urban Institute Press, 1988), p. 227.

9. Wilson, The Truly Disadvantaged, p. 60.

10. See Vander Zanden, The Social Experience, p. 239; Sawhill, "Poverty and the Underclass," pp. 227-230; David Whitman and Jeannye Thorton, "A Nation Apart," U.S. News and World Report, March 17, 1987, pp. 18-21.

11. A 1987 congressional study conducted by the Joint Economic Committee contends that a "low-wage explosion," which began in 1979, is keeping more than thirty million Americans below the poverty line. "Between 1979 and 1985—the most recent year for which government data are available—44 percent of the net new jobs created paid povertylevel wages" (Barry Bluestone and Bennett Harrison, "A Low-Wage Explosion: The Grim Truth About the Job 'Miracle,'" New York Times, February 1, 1987, sec. 8 [Business]).

12. See, e.g., Thurow, Zero-Sum Society, pp. 184-187; Joel Kotken, "The Reluctant Entrepreneurs: Are American Blacks Still Stuck on the Bottom Rung of the Economic Ladder Because So Few Start Businesses on Their Own?" Inc ., September 1986, pp. 81-86; Anthony Ramirez, "America's Super Minority," Fortune, November 24, 1986, pp. 148-149; "Asian Americans: Are They Making the Grade?" U.S. News and World Report, April 2, 1984, pp. 41-43; "Racial Tensions Mount Between Blacks, Koreans," Jet, July 1, 1985, p. 5. Other minority groups often experience less racial discrimination and segregation than African Americans do, which helps to explain their relative progress. Farley and Allen, for example, report that even the most recently emigrated minority groups experience less housing discrimination and segregation than African Americans ( Color Line, p. 148). These authors also claim that foreign-born blacks, such as West Indians, are only marginally better off than those born in the United States and are far worse off than whites (id., pp. 362-405).

13. See Edward C. Banfield, The Unheavenly City Revisited (Boston: Little, Brown, 1974); Oscar Lewis, The Children of Sanchez (New York: Random House, 1961).

14. See Wilson, The Truly Disadvantaged .

15. See William Ryan, Blaming the Victim, rev. ed. (New York: Vintage Books, 1976). break

16. See, e.g., Luix Overbea, "Youths Hold Key to Black Family Survival," Christian Science Monitor, April 1, 1987; "Growing Up Poor," Transcript no. 403, "Frontline" television series, February 2, 1986 (Boston: WGBH Educational Foundation, 1986); Carlyle C. Douglas, "Future of Young Black Men Looks Bleak, Panelists Say," New York Times, May 19, 1985, sec. 1 (main); "Children Having Children," Time, December 9, 1985, pp. 78-90; "A Threat to the Future," Time, May 14, 1984, p. 20. At the release of the Urban League's annual report The State of Black America 1986, National Urban League president John Jacob remarked that the plight of young African American men is one of the most pressing problems facing America today ( San Diego Union/Tribune, February 2, 1986). The role of teenagers in the breakdown of the African American family was highlighted in "The Vanishing Black Family," the controversial television report; for an excellent discussion of the program, see William Raspberry, "America's Black Family Crisis," San Diego Union, January 24, 1986.

17. See, e.g., "Children Having Children," p. 81.

18. The remark of the Atlanta teenager is quoted in "Main Street," TV Guide, June 14-20, 1986, p. A-69; the Newark teenager appeared in the televised report "The Vanishing Black Family" in January 1986.

19. "Growing Up Poor," p. 17.

20. Andrew Stein, "Children of Poverty: Crisis in New York," New York Times Magazine, June 8, 1986, p. 68.

21. Id.

22. "Growing Up Poor," p. 5.

23. Stein, "Children of Poverty," p. 68.

24. "Growing Up Poor," p. 6.

25. Studies have shown that food prices in poverty-stricken areas are above average; see, e.g., Rose, American Profile, pp. 7-8.

26. "Growing Up Poor," p. 6.

27. James P. Comer and Alvin Poussaint, Black Child Care: How to Bring Up a Black Child in America—A Guide to Emotional and Psychological Development (New York: Simon and Schuster, 1975), pp. 22-23, 19-21.

28. See, e.g., Thomas Morgan, "The World Ahead: Black Parents Prepare Their Children for Pride and Prejudice," New York Times Magazine, October 27, 1985, pp. 32-35.

29. Claude Brown, Manchild in the Promised Land (New York: Signet, 1965).

30. Claude Brown, "Manchild in Harlem" New York Times Magazine, September 16, 1984, pp. 38-40. See also Douglas, "Future of continue

Young Black Men"; "When Brother Kills Brother," Time, September 16, 1985, PP. 32-36.

31. "Welcome, America, to the Baby Bust," Time, February 23, 1987, p. 28.

32. Id., p. 29. See also "Growing Up Poor."

33. John Edgar Wildeman, Brothers and Keepers (New York: Penguin, 1984), pp. 57-58, 64.

34. See Williams, Eyes on the Prize ; Higginbotham, In the Matter of Color ; Winthrop D. Jordan, White Over Black: American Attitudes Toward the Negro, 1550-1812 (Chapel Hill: University of North Carolina Press, 1968); Julius Lester, To Be A Slave (New York: Dell, 1968); Herbert Aptheker, Nat Turner's Slave Rebellion (New York: Grove Press, 1966); Kenneth Stampp, The Era of Reconstruction, 1865-1877 (New York: Vintage Books, 1965); Kenneth Stampp, The Peculiar Institution: Slavery in the Antebellum South (New York: Vintage Books, 1956).

35. See National Advisory Commission on Civil Disorders (Kerner Commission), Report of the National Advisory Commission on Civil Disorders: Summary of Report (New York: Bantam Books, 1968; New York: A. Philip Randolph Institute, 1970), pp. 9-16, 5. See also "The Cycle of Despair," Life, educational reprint, March 8, 1968. For an account of how local governments, through the unequal distribution of municipal services, helped to create the impoverished conditions under which many African Americans now live, see Haar and Fessler, Wrong Side of the Tracks .

36. Statistics on the unemployment rate are found in U.S. Bureau of the Census, Current Population Reports: The Social and Economic Status of the Black Population in the United States—An Historical View, 1970-1978, Special Studies Series P-23, Publication no. 80 (Washington, D.C.: U.S. Government Printing Office, 1979), pp. 69, 70. See also Farley and Allen, Color Line, p. 214, figure 8.1. On the poverty rate, see U.S. Bureau of the Census, Current Population Reports: The Social and Economic Status of the Black Population, 1970-1978, pp. 29, 49, 50. On income levels, see Smith and Welch, Closing the Gap, p. 104. See also U.S. Bureau of the Census, Statistical Abstract of the United States, 1971, 92d ed. (Washington, D.C.: U.S. Government Printing Office, 1972), p. 316; U.S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, G (Washington, D.C.: U.S. Government Printing Office, 1975), pp. 189-256.

37. U.S. Bureau of the Census, Current Population Reports: The Social and Economic Status of the Black Population, 1970-1978, p. 74.

38. Smith and Welch, Closing the Gap, pp. 6, 23-26. break

39. Statistics on housing are taken from U.S. Bureau of the Census, Current Population Reports: The Social and Economic Status of the Black Population, 1970-1978, pp. 137, 139, 141. Statistics on education are taken from id., p. 93.

40. Carl Rowan, "The Blacks Among Us," Reader's Digest, June 1985, p. 72.

41. "Strivers and Defeatists," New York Times, November 2, 1986, sec. 4 (Week in Review).

42. Rowan, "The Blacks Among Us," pp. 74-75.

43. National Advisory Commission, Report, pp. 15-16.

44. See, e.g., "When Brother Kills Brother."

45. James Baldwin, The Evidence of Things Not Seen, (New York: Holt, Rinehart and Winston, 1985), p. 19.

46. Fiss, "Theory of Fair Employment Laws," pp. 237-240. For a more detailed discussion of racial sensibility, see Brooks, "Life After Tenure." For a discussion of other deleterious psychosocial consequences of racism, see Oscar A. Barbarin et al., eds., Institutional Racism and Community Competence, DHHS Publication no. (ADM) 81-907 (Washington, D.C.: U.S. Department of Health and Human Services, 1981); Alexander Thomas and Samuel Sillen, Racism and Psychiatry (New York: Brunner/Mazel, 1972); Joel Kovel, White Racism: A Psychohistory (New York: Vintage Books, 1970).

47. These statistics are reported in Sheldon H. Danziger, Robert H. Haveman, and Robert D. Plotnick, "Antipoverty Policy: Effects on the Poor and the Nonpoor," in Fighting Poverty: What Works and What Doesn't, ed. Sheldon H. Danziger and Daniel H. Weinberg (Cambridge, Mass.: Harvard University Press, 1986), pp. 50-77; and Kornblum and Julian, Social Problems, pp. 232-234.

48. National Opinion Research Center, General Social Surveys, 1972-1983, p. 117; Converse et al., American Social Attitudes, pp. 61, 91. See also Chapter 3 for further discussion.

49. See, e.g., Greg J. Duncan, Years of Poverty, Years of Plenty (Ann Arbor: Institute for Social Research, University of Michigan, 1984); Mary Jo Bane, "Household Composition and Poverty," in Danziger and Weinberg, Fighting Poverty, pp. 209-231.

50. Wilson, The Truly Disadvantaged, pp. 7, 30, 49, 56, 60-61, 143-144, 160.

51. See "Strivers and Defeatists."

52. Comer and Poussaint, Black Child Care, pp. 19-21.

53. Wilson, The Truly Disadvantaged, p. 60. A recent article (Donald S. Massey and Mitchell L. Eggers, "The Ecology of Inequality: Minorities and the Concentration of Poverty, 1970-1980," American Jour - soft

nal of Sociology 95 (March 1990): 1153-1188) confirms the view that African American interclass spatial separation has increased since the 1960s, but questions the importance of this trend in explaining the emergence of "concentrated urban poverty." Among the article's empirical findings that challenge this relationship are the following: the "highest levels of interclass segregation are observed in black communities notable for their lack of concentrated black poverty (e.g., Anaheim, San Jose), while metropolitan areas with very high concentrations of black poverty (e.g., New York, Philadelphia, and Detroit) have low to moderate levels of segregation by income" (id., p. 1171). As important as these findings are, they do not, however, measure the degree of interclass social and cultural interaction or otherwise disprove the theory advanced in this book that increased interclass separation helps to explain the emergence of the underclass subculture, especially dysfunction and self-destruction (see p. 121). Moreover, the article defines the African American underclass solely in terms of urban poverty, failing to differentiate among the working poor, the welfare poor, and other subgroups within the poverty class as discussed earlier in this chapter. The article simply demonstrates that upper-income migration from African American ghettoes fails to account for concentrated African American poverty; it says little about the relationship between that exodus and the African American underclass subculture.

54. James Comer, "Black Americans' Problems Are the Orphan of History," Los Angeles Times, February 14, 1986, pt. 2, sec. J.

55. See, for example, the discussion in Chapter 3 concerning insufficient resources in predominantly African American public schools.

56. Allan Bloom, The Closing of the American Mind (New York: Simon and Schuster, 1987), p. 91. Bloom expressly criticizes African American college students who have "veered off toward black separation" by demanding "segregated tables in dining halls" and "separation in housing and in areas of study" (meaning African American studies programs).

1. For discussion of various institution support programs, see, e.g., Dirk Johnson, "Companies Create 'Model School' for Urban Poor," New York Times, October 20, 1988, sec. B.

2. Id.

3. My views on Delancey Street are taken from several sources, including the following: a conversation in January 1990 with Mary Lynn Samios, currently an attorney in San Jose, California; Samios's research presented in her paper "Delancey Street: A Preliminary Report" (type- soft

script, July 25, 1985); Ann Japenga, "She's a Partner in Criminology," Los Angeles Times, April 5, 1984, pt. 5; Diana Sperrazza, "Special New Mexico Community Gives Losers 2nd Chance: Delancey Street Program," Albuquerque Journal, March 21, 1982; and a conversation in 1985 with the former president of the Delancey Street Foundation, Mimi Silbert, who holds a Ph.D. in criminology and psychology and who was teaching at the University of California at Berkeley in the 1970s when John Maher asked her to help run Delancey Street. Other useful sources include Grover Sales, John Maher of Delancey Street: A Guideline to Peaceful Revolution in America (New York: Norton, 1975); "The Delancey Street Gang," Newsweek, September 23, 1974, p. 81; and "Getting Straight on Delancey Street: San Francisco Therapeutic Community," Time, March 19, 1973, p. 82.

4. Gilbert Ware, William Hastie: Grace Under Pressure (New York: Oxford University Press, 1984), p. 16.

5. See Brooks, "Affirmative Action Issue."

6. "Images (1987), Farewells," Time, December 28, 1987, p. 59.

7. See the Introduction, above, for discussion of Booker T. Washington's theory of race relations. "Uncle Tom" is the name used for African Americans who try to ingratiate themselves with whites rather than demanding respect and equal rights. It is taken from Harriet Beecher Stowe's nineteenth-century novel Uncle Tom's Cabin, in which a slave by that name suffers submissively through beating after beating by Simon Legree, his master. Tom shows no anger toward the master, who finally beats him to death.

8. See, e.g., Schaefer, Sociology, pp. 63-83, 86, 182, 202, 609.

9. Some African American scholars claim that African American children have a distinct learning style as well as a distinct language style. This learning style may be a cultural liability, because it is deemed to be incompatible with the cognitive approach reflected in standardized tests and classroom instruction. The extremely controversial idea of an African American cognitive style requires more research. For a more detailed discussion of the theory, see Janice E. Hale-Benson, Black Children: Their Roots, Culture, and Learning Styles (Baltimore: Johns Hopkins University Press, 1986). See also New York State Department of Education, Increasing High School Completion Rates (Albany: New York State Department of Education, 1987), pp. 15-16.

10. See, e.g., Committee on Policy for Racial Justice, Visions of a Better Way: A Black Appraisal of Public Schooling, prepared by Sara Lawrence Lightfoot (Washington, D.C.: Joint Center for Political Studies Press, 1989). break

1. Murray, Losing Ground, pp. 227-228.

2. See this chapter's later discussion of the strict scrutiny test and Bakke for further elaboration of the concepts of racial inclusion and "unnecessarily trammeling the interests" of white Americans.

3. As mentioned in Chapter 2, this discussion focuses only on disparate-treatment discrimination. Middle-class African Americans also find disparate-impact litigation to be a problem, however.

4. See, e.g., Cleary, "Presuming and Pleading," pp. 11-12.

5. For a discussion of the frequency of perjured testimony in civil litigation, see Geoffrey Hazard, "Ethics in the Practice of Law," in Pleading and Procedure, 4th ed., edited by David Louisell and Geoffrey Hazard (Mineola, N.Y.: Foundation Press, 1979), pp. 1165, 1167.

6. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Also see the discussion in Chapter 2, above.

7. See 42 U.S.C. § 20000e-5.

8. Price Waterhouse c. Hopkins, 109 S. Ct. 1775, 1796 (1989).

9. Shipp, "Litigiousness of Academe," p. 63.

10. California Government Code §§ 12900-12996 (West 1980 and Supp. 1985). For extensive discussion of the Fair Employment and Housing Act, see Marjorie Gelb and Joanne Frankfurt, "California's Fair Employment and Housing Act: A Viable State Remedy for Employment Discrimination," Hastings Law Review 34 (1983); 1055-1105.

11. Fair Housing Amendments Act of 1988, P.L. 100-430, 102 Stat. 1619, September 13, 1988, amending 42 U.S.C. §§ 3601-3617 (1982).

12. For a good discussion of other strategies for dealing with the problem of intra-class racial disparity in primary education, see Hochschild. New American Dilemma .

13. As a former director of a special academic and admissions program for prospective minority law students, I placed great weight on a student's motivation and college grade point average, as did my predecessors. In a conversation with me, Trina Grillo, who is a professor of law and director of the academic support program at the University of San Francisco Law School, agreed with this approach and further stated that standardized admissions test scores were less predictive for African Americans than for any other group at her school. Narissa Skillmen, who is the well-respected pioneer of academic support programs in law schools in California and who now owns a private consulting firm in New York and Oakland, strongly recommends that less attention be given to standardized admissions tests and that more attention be given continue

to grade point average and motivation when evaluating African American applicants.

14. Wygant v. Jackson Board of Education, 106 S. Ct. 1842, 1861 (1986) (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 359 [1978]).

15. Id. at 1867. See generally United States v. Paradise, 107 S. Ct. 1053, 1064 (1987).

16. Local 28, Sheet Metal Workers v. EEOC, 106 S. Ct. 3019, 3036-3037 (1986) (cases cited therein). See generally United Steelworkers of America v. Weber, 443 U.S. 193, 202-203, 208 (1979); Johnson v. Transportation Agency, Santa Clara County, California, 107 S. Ct. 1442, 1450-1451 (1987).

17. See e.g., Johnson v. Transportation Agency, Santa Clara County, California, 107 S. Ct. 1442, 1451 (1987) (citing United Steelworkers of America v. Weber, 443 U.S. 193, 208 [1979]).

18. For fuller treatment of this argument and of the morality issue, see, e.g., Kupperman, "Relations Between the Sexes."

19. The government may no longer be the sole provider of remedial education. Citing an oral report given by the American Society for Training and Development recently, the Wall Street Journal lists the following statistics: "22% of [large employers] . . . offer basic training in reading, 41% in writing, and 31% in arithmetic" ("Labor Letter," Wall Street Journal, February 20, 1990).

20. "Labor Letter," Wall Street Journal, December 3, 1987.

21. See Roy L. Brooks and Sharon A. Cheever, "The Federal Loan Guarantee Program: A Unified Approach," Journal of Corporate Law 10 (1984): 204-205. break